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.”
“Butwho 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. “DavidLowry Swain and JamesLowry are half brothers? Curious coincidence of names.”
“Not a coincidence at all,” said Elizabeth. “Don’t you know that story? It’s common talk in the western legal circle. David Swain’s mother was Miss Caroline Lane, who as a young woman was married to a Mr. David Lowry. They lived on a farm in north Georgia, and she bore him a number of children. Sadly for his wife and babes, David Lowry was killed in an Indian raid, and poor Caroline Lowry married again-to a Mr. George Swain, who is a merchant and a physician. They had six or seven children-I forget the exact number-”
“Really? I would have thought you’d have their birthdays down by heart.”
She waved away the Swain offspring. “They aren’t important, except for the youngest. And his mother named him after her first husband-David Lowry. So he is David Lowry Swain. Isn’t that a sweet story, Burgess? Such a tender remembrance. The poor woman never forgot her first love.”
“One wonders how Mr. Swain felt about the matter,” I muttered. “Though perhaps after six predecessors, the happy couple had run out of names anyhow. They might have called the next one after the cat.”
“Names are a serious business in good families, Burgess,” said my wife reprovingly. “It tells the world instantly and precisely what your connections are-Oh!”
Her lecture on dynastic nomenclature was cut short by a wail from the nursery. Our own son and heir, young master William Willoughby Erwin Gaither, was in need of his mother’s attention.
A few minutes later Elizabeth returned to pursue the topic of Nicholas Woodfin with renewed interest, but I was unable to satisfy her curiosity regarding the young gentleman’s antecedents. I said that Colonel Erwin had vouched for Woodfin as a competent attorney, and we were too preoccupied with legal matters to inquire into his suitability for breeding purposes. Elizabeth murmured that perhaps someone in her family would know who he was, and I did not doubt that for a moment. The Erwins of Belvidere have eight daughters; no gentleman west of Wilmington escapes their scrutiny.
After a few minutes of companionable silence, my wife looked up from her embroidery and said, “Something has just occurred to me, Burgess dear.”
“Yes?”
“None of you lawyers wants to defend this poor girl Frankie Silver. Is that correct?”
“It is most fervently the case,” I assured her.
“Aha! Then why would Nicholas Woodfin agree to take it?”
“I can give you three reasons. First, he is a very young attorney who needs the trial experience, and perhaps even the celebrity that might be gained from this case. Second, he has another case on the Superior Court docket, so he is coming anyway. Another case will only make his trip more fruitful. Third, Woodfin may be well connected by association with David Swain, but your family assures me that he is by no means rich. The legal fees in the Silver case will not amount to much, but I’m sure they will be welcome to a fledgling attorney.”
“Those are good enough reasons, I suppose,” said Elizabeth. “But what would cause Mr. Woodfin to accept this case when our Morganton lawyers would not?”
“Precisely that, Elizabeth. Nicholas Woodfin isnot a Morganton lawyer. A local man would lose the community’s goodwill and a substantial portion of his income from deeds and wills by associating himself with the infamy of Frankie Silver. Nicholas Woodfin will suffer no ill effects. He can take the case, show off his legal skills to his fellow attorneys in circuit court, collect his fee, and then ride away to Asheville, some fifty miles away, where few people will know or care about a Burke County murder case. He will not lose a scrap of business for his effort, and if he does well in court, he may even increase his practice by gaining the goodwill of the legal community.”
“It seems very suitable for all concerned,” Elizabeth conceded. “But what of that poor young woman? Will she be well represented by such young and inexperienced counsel?”
“Your cousin James assures us that Nicholas Woodfin is an able fellow who plans to specialize in the practice of criminal law. He may well be Mrs. Silver’s best hope for a defender. Besides, Thomas Wilson has graciously consented to serve as second counsel, so that Woodfin can have the benefit of his experience.”
“For part of the fee, of course,” said Elizabeth, smiling.
“Of course.”
“But he will not speak for Frankie Silver in court?”
“No, certainly not. That is Woodfin’s task. Woodfin is to be seen to act as her attorney.”
“So all of our local attorneys-”
“Most of which are in your immediate family,” I hastened to remind her.
“Thank you, Burgess. I know that. So the Erwins and Mr. Wilson are relieved of the obligation of taking the case, and therefore they will save their livelihoods. And you tell me that Nicholas Woodfin is a good man. I am glad to hear it. My sister Mary is most concerned about the poor young woman.”
“She need not worry on Mrs. Silver’s account.”
“Mary says that she would like to visit the jail. She wants to hear the facts of the matter from the accused woman’s own lips.” Elizabeth took a deep breath. “And I would like to go with her!”
“Neither of you will be permitted to do anything of the kind,” I said, with ill-concealed irritation. “Thomas Wilson is acting as advisory counsel until the trial. He has cautioned his client with the utmost severity against speaking to anyone about her case. I doubt that Sheriff Butler would permit you or Mary to visit. I urge you not to attempt such a thing.”
“My sister Mary is quite determined.”
“Your sister Mary always is.”
“And you are sure that Mr.
Woodfin will be a sympathetic and conscientious defender of poor Mrs. Silver?”
“I am certain that he will be excellent, my dear,” I assured my wife. But I was thinking,He is a good deal more than she deserves, for we believe she is a wicked murderess. I did not tell Elizabeth that her cousin James’s parting remark had been, “Won’t we look like fools if the young devil gets her acquitted?” And we all laughed heartily at that.
I miss the flowers. I can hardly bear to look out. The ground is so bare and brown now, and the trees look for all the world as if they were dead. “Don’t you worry,” Sarah Presnell says to me when she brings me my dinner. “The flowers will be back in late March. Everything comes alive then, same as ever.”
I must be the opposite of the flowers, then, for they will reappear the very week that my trial is held. They will be coming alive as I commence to dying. They have got me a lawyer, Mrs. Presnell says, and she seems to set a store by them, always going on about what fine gentlemen they are, and big political men, but I cannot see what use that will be to me. I don’t trust strangers, and I’ve seen the way these town-bred folk look at us mountain people-like we were something they caught in a trapline, and they’re afeared of catching something off ’n us. I do not want to tell my secrets to such as them, for they are men, and like as not they own slaves to boot. What would they know about being afraid? They think the law looks after people that needs help. They live in a town with a sheriff within hollering distance, and prying neighbors to see that everybody does what he ought. It’s easy to die in the wilderness, and there’s nobody around to save you.
The Ballad of Frankie Silver Page 12