The Ballad of Frankie Silver (44 page)

Woodfin looked thoughtful. “Who was the other lawyer?”

“Andrew Jackson.”

“I thought so.” Woodfin smiled. “Well, that was a long time ago, my friend, and there were giants in those days, but here in 1851, we are given the task of defending a man whose opponent was even less of a gentleman than Andrew Jackson. Horsewhipping a colleague in a public street! I ask you!”

“And you think you can get him freed, despite the lapse of two weeks between incident and reprisal? Despite the scores of witnesses?”

“Of course I can,” said Woodfin. “No one should hang when his offense has been committed in defense of his person or his honor.”

“I wish you could have convinced a jury of that twenty years ago,” I said with a sigh. It was an impudent remark to make, I suppose, but I was uneasy with the dismissal of Samuel Fleming’s murder as a justifiable execution. Also, the memory of Frankie Silver had lain heavily on my mind these past few days, and my words were out before I could call them back.

Woodfin gave me a blank look. “Twenty years ago?”

“In this very court. You lost that capital case, alas.”

“Lord, yes. Little Mrs. Silver,” sighed Woodfin. “I have not forgotten her. I wish to this day that I could have saved her. You were at that trial, too, weren’t you, Gaither?”

I nodded. “I was clerk of Superior Court in those days.”

“And old Tom Wilson was my co-counsel. I always pictured him as an unhappy cross between crow and scarecrow. What has become of him, anyhow? I had thought to have seen him here.”

I hesitated. “He no longer lives in Burke County,” I said at last. “He has taken his family off to Texas.”

“Really? How long ago?”

“Only a few months back.”

“Thomas Wilson went to Texas? At his age? What was he, seventy?”

“Only sixty, I think,” I said, as if that made it any less extraordinary for an elderly lawyer to strike out for far-off territory.

“But I thought he had been practicing law here in Morganton forever,” Woodfin protested.

“Twenty years or so. Yes.”

“And surely I’m correct in remembering that his wife had some connection to the Erwins of Belvidere?”

“She is Matilda Erwin’s niece.” I had avoided looking at Woodfin as I made my replies, and he must have realized that I was less than forthcoming about the matter of Thomas Wilson’s sudden departure. He was watching me closely.

“So,” he said, “Thomas Wilson has given up a twenty-year law practice, and a good farm near his influential relatives. At his advanced age, he has forsaken the state of Carolina to go and seek his fortune in Texas. Does he think that he will have some political future out there in the new government in Austin, now that the territory has become a state?”

“He has not gone to Austin,” I murmured. “Really, I know nothing about it.”

Nicholas Woodfin was an excellent lawyer. Certainly he was too skilled at cross-examination to let this remark pass, no matter how casually I endeavored to say it. “The Wilsons have
not
gone to Austin?”

“No.”

“Where then?”

“I believe my wife has had a letter from Mrs. Wilson a few weeks back. It seems that the family has settled in a little place called Seguin.”

“Where in God’s name is that?”

“They say that it is in the vicinity of San Antonio, where the Battle of the Alamo was fought.”

“Seguin,” Woodfin repeated, searching his mind for a familiar ring to the word. He did not find one. “Is it a spa of some sort? A restorative to health?”

“No. It boasts no mineral springs. It is said to be a dry sort of place.”

He pondered this. “Gold mining country?”

“I think not.”

“Land grants for gentlemen settlers?”

“Not that I have heard. No.”

“Is he practicing law, then?”

“I believe he is. Certainly. I have not heard otherwise.” I cast about for some other topic to distract my colleague from his interrogation. Even talk of Avery’s plight was beginning to seem preferable to our current discussion.

“I believe it is difficult to practice law in Texas,” said Woodfin. “One must not only know United States law, now that the territory is a state. One must also contend with old deeds from French jurisdiction, and also with Mexican law, which is based upon the Spanish system. It must be quite a challenge to an old fellow who has never practiced law outside the boundaries of North Carolina.”

I had no answer to this.

Woodfin leaned back to watch me as he prolonged the silence, so that I should have ample time to reflect with him upon the absurdity of my statements. Why indeed should a man of nearly sixty leave his farm and his law practice of twenty years to go to a remote village in Texas, removing his only son from a chance at a university education? If I had been an ordinary citizen upon the witness stand, I would have burst forth with the explanation simply to end the awkwardness of the encounter. But I, too, am an attorney. Perhaps I am not the seasoned trial lawyer that Woodfin is, but I hope I can hold my own in a discourse with my peers.

“Well, Mr. Wilson has gone off to seek a new life,” I said as heartily as I could manage.

“There is a saying I’ve heard in recent years,” said Woodfin thoughtfully. “Some men come to a time in their lives when they either go to hell or Texas.”

I managed a watery smile. “I’m sure we all wish Mr. Wilson luck in his bold new endeavor.”

Nicholas Woodfin nodded thoughtfully, for by now he had realized that as a gentleman I could not disclose Thomas Wilson’s reasons for leaving Morganton. “Wish him luck, indeed,” Woodfin echoed. “So you should, Mr. Gaither, for he will need all of it, and more, I think.”

I cast about for another subject to distract my colleague from further inquiries about the Wilsons. “Do you remember Jackson Stewart, the elder brother of Mrs. Silver?”

“I do,” said Woodfin. “He glowered at me from ten feet away throughout the trial. He had been in Kentucky with his father when the murder occurred, had he not? What became of him? Not hanged, too?”

I smiled. “Quite the reverse, I’m happy to say. You recall that there has been a new county that has been carved out of the western portion of Burke. Yancey County, it’s called. Jackson Stewart is running for the post of sheriff there.”

“I had not thought to hear that.”

“They say he stands a good chance of winning, too. He is prominent and well liked in the district. Odd that you should mention hanging, though, Woodfin, for I have heard that the other Stewart brother—the younger one who was arrested with his mother and sister—
was
hanged as a horse thief in Kentucky. It may be idle talk, of course, but one of the Yancey constables swears that the whole Stewart family was cursed.”

Woodfin smiled at this superstitious extravagance. “Cursed? How so?”

“They have all died violent deaths, apparently. The father—Isaiah Stewart—was killed while felling a tree. Crushed. And a few years after that, Barbara Stewart, his widow, was out picking blackberries, and a rattlesnake bit her. She died a terrible death, I was told.”

“The poisoning of snakebite is slow and painful. I’m not sure that I wouldn’t prefer the hangman’s rope,” said Woodfin. “I suppose folks in the hills think that the hand of Providence has struck down the Stewarts for their part in the killing?”

“I suppose some of them do think that,” I said, “but I would not agree with them. Life is hard on the frontier. There are a good many ways to catch your death before you succumb to old age.”

“Didn’t Mrs. Silver have a child? Has it, too, felt the wrath of divine retribution?”

“I don’t believe so. The little girl would be twenty-one or thereabout today, as I recall. I know that she lived to grow up. About four years after her mother’s execution, the Stewarts appeared in court here in Morganton, petitioning for the right to custody of the child.”

I remembered the sad scene in the courtroom. The little girl was her mother in miniature, with a calico dress and flaxen hair spilling out from beneath a little poke bonnet. Her large, troubled eyes that stared at strangers without fear or favor. She clung to the hand of one of Charlie’s sisters, but she sat still and quiet through the little hearing, though I am sure that she understood none of it. Perhaps if she had understood, she would not have listened so calmly to the arguments concerning her fate. The Silver family had raised the child from the time her mother was taken into custody, and it must have been difficult for her to be taken from the only home she knew. I hope that she visited back and forth for the rest of her childhood, for I know that the families lived close to each other.

“Was the petition for custody granted?” asked Woodfin.

“Oh, yes. Upon the usual conditions. The girl had to be taught to read, and upon her eighteenth birthday she was to receive certain material goods, and so on. I had occasion to speak to Jackson Stewart once at a political meeting, and he mentioned that his niece had got married.”

“To a brave man, no doubt,” said Woodfin with a chuckle. Then he sighed. “That was unworthy of me. No one knows better than I that the child’s mother was unjustly hanged. I wish the daughter well.”

“We might wish that she has made a better choice of husband than her mother did.”

“That, certainly,” Woodfin agreed. “You know, though, that case haunts me yet. I cannot help thinking that if Mrs. Silver had known more about her own rights under the law, or if she had been able to read, even, she might have been saved.”

“Let it go,” I told him. “You did your best at the time.”

He smiled. “I atone in little ways. I have paid for the education of needy girls and boys, and a good part of the salaries of the Asheville Female Academy are paid by me. I never want another young woman to die because she was unlearned. I look at my own daughters now, and I think of that poor lost little thing.”

I was glad to hear that Woodfin is doing charitable works to soften his regret at his first case lost, but privately I wondered if a fine education ever saved a woman from a brutish husband. There are gentlewomen of my acquaintance whose lot in life is little better than Frankie Silver’s, for all their silks and lace.

*   *   *

The trial of William Waightstill Avery took place on a bitter Friday in late autumn, before Judge Kemp Battle in the court in Morganton. He had not languished in jail. He was arraigned on Wednesday, a true bill returned by the grand jury on Thursday, and Friday we went to trial.

Nicholas Woodfin spoke for the defense. He argued first that although eighteen days had passed between the original encounter and the homicide, the outrage committed by Fleming was so gross, and Avery’s suffering and humiliation so great, that his passions had not cooled, and therefore his shooting of the victim was no more than manslaughter.

“Well, I will overrule that,” Kemp Battle declared, and he gave Woodfin a look that said:
Damn your impudence.
“The jury is directed to consider the offense to be murder, not manslaughter, if the defendant is found to be of sound mind at the time of the incident.”

Upon hearing those words, Nick Woodfin changed his tack as smoothly as a Yankee clipper. “But of course Mr. Avery was not of sound mind at the time,” he protested. “How could he be? He was injured in body and soul by the cowardly attack on his person by Mr. Fleming in the public street of Marion. He went mad with shame and rage. His very honor was at stake.”

There was much more of this in the course of the morning. Mr. Caldwell, Mr. Bynum, and I were all called upon to add our words to that of Woodfin’s, and we all stood and said much the same: Waightstill is the kindest of men; surely he was mad with the injustice done to his honor and his person; he is very sorry for it now.

I thought, perhaps, that Judge Battle saw our plausible arguments as whitewash over the stain of our friend’s misdeed. He heard us out in grim but red-faced silence. Still, it was not for him to decide the fate of Waightstill Avery. Twelve jurors, all men of Burke County known to Waightstill at least on sight, sat in judgment of the murder case.

Woodfin gestured and shouted, waxing high on the indignity of a public thrashing, and then pitching his voice low and steady as a growl when he spoke of the festering anger that followed, and of the shame Waightstill Avery felt when friends told him that Fleming was boasting of his foul deed. What choice did he have but to cleanse his name in the blood of his tormentor?

It was a stirring speech. The theatre lost a titan when Nick Woodfin chose the law instead of the stage as his profession. I could see the jurors, watching wide-eyed as the performance rose in pitch, and I have no doubt that had he been a Plantagenet, instead of a country lawyer, Woodfin could have got them to invade France with the power of his words. He has gained much in skill and style since the days when I first knew him.

At last he judged that the jurors had heard enough. The prosecution got up again and argued that shooting a man in cold blood in the sanctity of a courtroom, in front of six dozen witnesses, was murder, by God, and what else could you call it? The state’s lawyer conceded that Waightstill Avery was rich, and well connected, and that he rejoiced in the eloquence of his friends, who stood here now to defend him, but, be that as it may, Avery had—with the arrogance of the rich—appointed himself judge and executioner upon a fellow attorney. Were the honest citizens of Burke County going to let him get away with it?

The jury retired in the early afternoon to deliberate the matter. I watched the twelve men file out of the courtroom. “I suppose we might wait in the tavern,” I remarked hopefully to my fellow attorneys, for I felt much in need of a change of air.

Mr. Bynum smiled. “Why don’t we wait half an hour so that Waightstill can join the party?”

“But surely—”

Woodfin nodded in agreement. “Unless I miss my guess, we haven’t time to leave the premises. The jury should be back within the hour.”

They were back in ten minutes. As the jurors filed in, my colleagues exchanged satisfied glances, as if the speed of the verdict were a tribute to their skills of oratory, but I was still not convinced that the verdict would be a favorable one, for I had seen the shooting take place myself, and I could not call the killing of an unarmed man “self-defense,” regardless of the provocation several weeks earlier.