The Ballad of Frankie Silver (31 page)

The prisoner followed the constable into the courtroom with the same careful detachment that I had seen before, but when Thomas Wilson rose to greet her, she shrank back and I saw her eyes widen in surprise. An instant later her face was expressionless again, and she nodded to him with grave courtesy, but as the attorney turned to sit down again, I saw her eyes searching the courtroom. I did not think she was seeking the faces of her family.

Nicholas Woodfin is not here
, I wanted to tell her.
He lives in Asheville, a long way from here, and he had no paying cases before the court here today. Besides, an attorney is not really needed at a sentencing hearing. There is nothing to be argued now.

I saw her set her lips in a tight line, and I knew that she would not ask for her erstwhile champion, not even if they put the rope around her neck this very minute, but I wished that someone would explain the circumstances to her.

Thomas Wilson was a local attorney. He had attended this session of Superior Court because he had other clients to represent, but out of courtesy, or perhaps sympathy for this poor lost girl, he came to stand by her side for the formal delivery of the death sentence, so that she might have an arm to lean on if she needed it, or someone to comfort her in her hour of need. I was glad to see Wilson there, an unsmiling scarecrow in a black suit, but I liked him all the better for it. What a cruel thing it would be to stand up all alone among strangers to hear your death sentence passed.

I glanced about the courtroom. Although the hour of nine was already upon us, the judge had not yet appeared, which meant that we all must wait upon his pleasure with but little to do. I left the day’s notes and papers at my desk and strolled over to Wilson, extending my hand as if it had been days since I had seen him instead of hours.

“Good morning, sir! I hope you and Mrs. Wilson are keeping well.”

“Tolerable,” said Wilson. A flicker of bewilderment crossed his face at my sudden effusiveness, but he shook my hand with perfect civility.

I inclined my head in the direction of Mrs. Silver to acknowledge her presence. To do more, I felt, would be unseemly, given the sad purpose for which we were assembled. She stared back at me without interest for a moment, and then she looked away, directing her gaze to the courtroom window, as she had throughout most of the trial.

“What do you hear from Mr. Woodfin these days?” I asked Thomas Wilson. Out of the corner of my eye, I saw her shoulders stiffen, and although she looked away quickly, I knew she was listening now.

“Nicholas Woodfin?” Wilson blinked, wondering no doubt what had possessed me to inquire of him. “Why, I believe that he is well. I have not heard otherwise.”

“Nor have I,” I said heartily for the prisoner’s benefit. “No doubt he is very busy with his legal practice these days, for he is an excellent trial lawyer. I think that we shall not see him today, though. I have the court docket, and I know that none of those who stand trial here today are represented by him.” I paused to make sure my words had sunk in. “For those who have already been convicted, no doubt Mr. Woodfin can help them more effectively outside the courtroom, with his letters and his influence.”

“No doubt,” said Wilson with a trace of asperity. “Good day, then.” Thomas Wilson is an able lawyer, but not much given to subtlety, and I am sure he thought my conversation was the babble of an eccentric. His client understood, though, for she gave me the faintest smile, and I took my leave of them.

I resumed my place at the front of the courtroom, and we waited for the circuit judge. That dour Scotsman John R. Donnell, who had presided over the trial of Frankie Silver, had served out his tenure in the Western District, and he had been replaced by a newly designated judge who was no stranger to the far reaches of the piedmont: Mr. David Lowry Swain of Asheville. I had never met him, but I knew him by reputation as an able and ambitious man. In anticipation of his visit to Morganton, I had overheard several persons in town mention the story of his naming that I had heard from Elizabeth: Swain was called David Lowry in memory of his mother’s first husband, who had been killed by Indians on the Georgia frontier. I remembered, too, that when David Swain was an up-and-coming young attorney in Asheville, Nicholas Woodfin had read law under him before passing the bar himself.

I wondered what Mr. Swain would make of this fragile young woman who waited to be sentenced to death. Had the judge heard about her case from his former associate Mr. Woodfin? I did not see what difference it could make, though. The jury had spoken, the State Supreme Court had upheld their decision, and the judge—whoever he was—would have no choice but to set the date for the execution.

I looked at my watch. Nearly half past. Where was Mr. David Swain? Had anyone seen him in town? I searched the faces in the courtroom until I found Will Butler at the back, near the oak doors, talking with one of the constables. The look on the sheriff’s face told me that he was as mystified as the rest of us. I slipped away from my desk and went to confer with him.

“Is there any news of the judge, Mr. Butler?”

He shook his head. “Yesterday’s stage brought me no letters. I am at a loss to know what has become of him. The weather is not to blame.”

I glanced at the sun-glazed windows above us. The day was fine, as its predecessors had been for a long stretch of Indian summer. No storms had flung down tree limbs in the path of the Raleigh stagecoach, and no swollen rivers had made the fords impassable. “Perhaps His Honor is ill,” I said to Butler.

“
His Honor
is thirty-one years old,” said the sheriff. “I doubt if his health prevents his coming. It is more likely to be his ambition that trammels him. Something must be afoot in the state capital.” He looked at his pocket watch. “I will give him until the hour, and then we will adjourn for the day on my authority. Does that meet with your approval?”

“We can hardly do otherwise,” I said. “If there is no judge to preside, the cases cannot go forward.”

The voices rose higher and higher as the hour drew nearer, and I could hear people wondering aloud over the judge’s absence. At last Will Butler’s voice crested the roar, and he bellowed out: “I hereby declare this session of the Superior Court adjourned until tomorrow, due to the absence of the judge.”

There were a few groans of protest, probably from those who had ridden great distances to attend the session, and who would now have to pay for a night’s lodging or sleep rough in order to come to court tomorrow. We waited while the spectators dwindled away, until finally only the sheriff, the prisoner, Thomas Wilson, and I were in the courtroom. In the doorway a constable was waiting for the signal to escort Mrs. Silver back to her cell.

I could see that she was puzzled over this turn of events. She touched the sleeve of Mr. Wilson’s black coat. “Why didn’t he come?”

The lawyer smiled. “Oh, some trifling delay upon the road, like as not, madam. A lame horse, a broken carriage wheel. It is a long way to Morganton, you know. He will turn up this evening, I do not doubt.” He meant to be reassuring to the prisoner; no doubt he had not considered the implications of the judge’s arrival.

“What if he don’t come?”

Thomas Wilson gave her an oily smile. “But I am sure that he will.”

*   *   *

The next day the courtroom was again filled with anxious prisoners and idle spectators awaiting justice at the pleasure of the lowland bureaucracy. This time, when the hour of nine had come and gone, there were murmurings about the courtroom. “I suppose the judge has better things to do than to come to our neck of the woods!” someone called out.

“Probably afraid of the Indians!” someone else called, and the laughter overcame the grumbling, for one might as well be afraid of the Phoenicians in these parts nowadays.

Will Butler paced the floor, taking out his watch and glancing at it so often that I wondered why he bothered to put it away. Inevitably a fistfight broke out in the back of the room: bored farmers with a few drinks in their bellies are not the most patient of men. When the sheriff saw that the fight was in earnest, and that it bid fair to spreading among the rest of the congregation, he rapped on the bench for order and bellowed out, “I declare this court adjourned until the spring term—
dammit.
” That last word was uttered under his breath, so that only I overheard him, and I did not have time to discuss his ruling before he plunged into the melee wearing a curious look of satisfaction that made me think that quelling the insurrection would serve as a tonic to his own frayed nerves.

It was Butler’s last significant act as sheriff of Burke County, for within weeks John Boone would assume the post of peace officer of the county, a duty for which he now had scant enthusiasm. Will Butler’s continuance of the case of Frankie Silver ensured that his successor, not he, would have to hang the prisoner. I think, though, that both of them were playing for time, believing that the petitions and letters to Governor Stokes would surely result in a pardon, so that the dreadful sentence would not have to be carried out by anyone.

The courtroom began to empty.

“What does it mean?” Mrs. Silver sat looking up at her black-clad attorney. Her pale face wore an expression of guarded hope, as if she scarcely dared to believe what she thought must be true.

“You have the gift of six months,” Wilson told her gravely. “I pray that you will use it wisely, madam, in prayer and meditation. Court will meet again in March.”

“It’s over?”

“It is called a continuance, madam.” The lawyer’s voice bristled with annoyance, no doubt because his time was being wasted to no good end by a young puppy of a judge who cared little for the concerns of the western reaches of North Carolina. David Swain’s ambitions lay in Raleigh, and no doubt he had deserted our country courthouse to further his own aims.

“What must I do?”

“You must wait, Mrs. Silver, like the rest of Burke County. Good day.” Thomas Wilson gave her a slight bow and nodded to the jailer, who had come forward with the shackles to take the prisoner back to jail.

David Newland appeared, with a smile of triumph. “This has been the best day’s work Will Butler ever did!” he announced. “He has managed to stall the case until spring, and has thus given the governor time to issue the pardon. I have no doubt that he will do it.”

I motioned for him to keep his voice down, for I saw little Mrs. Silver walking slowly toward the door and glancing back at us. I knew she was listening to Colonel Newland’s declaration: she lifted her head and took a deep breath, as if a weight had been lifted from her back.

Newland, oblivious to my warning signal, prattled on. “Or perhaps the thanks should go to young Judge Swain for this extra time in which to prevent this execution,” he was saying. “Quite providential of Swain not to turn up for this court date.” The colonel turned to Thomas Wilson. “Is it Mr. Woodfin’s doing, do you think, sir?”

The lawyer’s face was white with anger. At last he said, “I believe the word you used just now was
providential
, Colonel Newland, and I judge it to be the correct one. I should thank no one but Almighty God for this respite, if you are inclined to think it a blessing. My prayers on that subject will be that the prisoner not have her suffering prolonged by false hopes and a protracted wait for a death that would be more merciful if it came quickly.”

And so she was gone, locked away for another season to pass the harvest, and then the winter, in that narrow cell, and I’m afraid I gave little thought to her over the next several weeks, for we are busy enough at harvesttime. I know that the ladies of Morganton continued to visit her, though, for I have heard Elizabeth speak of it among her sisters. They have made quite a pet out of the county’s most notorious criminal, and I found myself wondering if the ladies were basking in the melodrama of the doomed woman, or whether they envied her the courage and determination she showed in disposing of an unwanted husband. The men of the county thought she had perpetrated a great wickedness, but I am not sure that the fair sex shared our thoughts on the matter. Many a man in the tavern was uneasy enough when the talk turned round to Frankie Silver, and those who professed the loudest that she should be hanged without delay were the very men who seemed the least respectful of their own wives. I wondered sometimes if brutish husbands behaved a little better that year because of the terrible example of retribution that Mrs. Silver had set before us.

Several weeks after the dismissal of court, elections were held and John Boone took his place as the newly elected sheriff. I am sure he thought that the case of Frankie Silver would be over and done with before he took office, but it lingered still, harrowing him with the dreadful possibility of an execution in his term. Other prominent citizens of the county were still trying to persuade state officials to listen to reason. True to his word, Thomas Wilson wrote a letter to the governor on behalf of his client.

Statesville
19 November 1832

My dear Sir,

I hope you will pardon my troubling you with these few lines. The importance of the subject which I wish to mention will plead my justification. It is the condition of the unfortunate lady who is now confined in our jail at Morganton: Franky Silvers. She has been induced for some little time to believe a Pardon has been granted by your Excellency. This opinion has got abroad through a misunderstanding of Col. David Newland.

It is not necessary that I should multiply in words or reasons why I think she should win a pardon. Suffice it to say that I have no hesitation in saying that the community expect her Pardon and I believe generally wish it. Mr. Joseph Erwin was present at the trial to whom I refer you. He, I know, at one time thought it a case very doubtful. I saw David Newland at Wilkesboro & read the letter which Hugh M. Stokes wrote on that subject. I fully concur in sentiment with him as to the opinion of the community. There is certainly one, but few more, who think or wish her execution. It is believed by many that her Parents was very instrumental in the perpetration of that horrid deed. If so, shurely it is a powerful reason why the executive clemency should be extended to one of her age and condition.