The Ballad of Frankie Silver

by Sharyn McCrumb

  “It is worth a try,” I told him.

  “Will you write him, then?”

  I shook my head. “It would not be seemly for a Superior Court clerk to protest a ruling from his own court.” I did not like to think what Squire Erwin would say if I had undertaken such a measure. “I suppose I could sign a petition, though,” I said. “As a private citizen. The letter will need to be accompanied by a petition showing wide support for the prisoner within the county.”

  “Who should write the governor then?”

  Not I,I thought. I told him: “There is nothing to prevent an honest citizen from taking up the cause, and since you are the one who broached the matter with the governor, surely you are the person to plead her cause with him now. Could you manage such a letter, Mr. Newland?”

  He looked at me shrewdly. “I might. There may be one or two gentlemen who could advise me on how to set forth my argument. And I have business in Raleigh in early September, so I shall take care to see that he gets it.”

  I smiled. “I’m sure that Governor Stokes’s door is always open to the citizens of Burke County.”

  Several weeks later David Newland again waylaid me as I happened to be waiting for the stage. “I have it done!” he said proudly. “That letter to the governor. I have headed it ‘Raleigh,’ for I shall deliver it when I get there.”

  He handed me the letter for inspection.

  Raleigh, 6 Sept. 1832

  His Exelency

  M. Stokes, whom I had the pleasure of seeing in Wilksboro some time in April last.

  The circumstances of Mrs. Silvers killing her husband was named and you was told that a petition would be presented to you for her pardon. The petition has come in hand for your consideration. At the time aluded to in Wilksboro you claimed you did not know of there ever having been a female executed in N. Carolina & asked if I had-to which I answered in the negative. You then said you would be delicately situated & asked me my opinion. I answered that if rumor be true I thought her a fit subject for example.

  But Sir from various information which I have rec’d since her trial I am induced to believe her gilt has been much exagerated which you will perceive by the opinion some gentlemen of the Bar whom has signed her petition & was present & also disinterested during her trial. Upon the whole I realy think her a fit subject for excitive Clemency.

  Yours, sinsearly,

  D. Newland

  “It’s a fine letter, Mr. Newland,” I said, for if I helped him with its phrasing or altered his misspellings, I would have had a hand in the document, which I did not feel able to do. “I hope it may achieve its purpose.”

  He nodded happily. “The petition is done as well. You can see it has a goodly number of names on it. Some lawyers, and four of the jurors. The governor ought to sit up and take note of that.” He said no more, but he watched me expectantly.

  “I’m sorry, Mr. Newland,” I muttered at last. I felt my cheeks redden as I spoke. “I do not feel able to add my name to the list of supporters. I do not know the circumstances of Charles Silver’s death, and so I cannot say if his widow should go free or not.”

  Colonel Newland eyed me sadly. “You are dealing in justice, Mr. Gaither,” he said. “I am dealing in mercy. I hope some day-before it is too late-you find that Mrs. Silver is deserving of both.”

  Burgess Gaither

  SENTENCING

  On the fourth Monday in September, the Superior Court of Burke County convened to hear the fall docket of cases. One minor matter in terms of the court’s time, but uppermost in the mind of Morganton, was the sentencing of the convicted murderess Frankie Silver. Her time was drawing nigh, and already people were talking of the crowds that would flock to town for the execution. No woman had ever been hanged before in Burke County, or indeed anywhere that we had ever heard of, and excitement was running high at the prospect of such a cruel yet extraordinary spectacle. No traveling circus or tent revival meeting could rival the thrill of watching a pretty young woman die at the end of a rope, or so the local pundits said in the tavern. I seemed to be the only one present who had no wish to see such a dreadful event, but I kept my opinions to myself.

  This was Will Butler’s last Superior Court as sheriff. A county election would be held in November in conjunction with the presidential election and various statewide offices, and since sheriffs are not permitted to serve consecutive terms in North Carolina, Butler was already preparing to leave. He looked every inch a gentleman as he entered the courtroom that brisk autumn morning in a russet-colored waistcoat and shining brown boots, but his expression was that of a worried man, and I wondered what was amiss.

  The courtroom was not as packed with spectators as it had been for the trial of Frankie Silver, for no momentous crimes were set to be tried and no sensational testimony was in the offing, but since no court day goes unmarked by the curious and the scandalmongers, there was no shortage of spectators for the proceedings.

  Gabriel Presnell brought the prisoner in through the great double doors, and my first thought upon seeing her was that her borrowed dress fit better now. Her collarbone, sharp as a split rail, no longer protruded above the bodice of the garment, and she was not swallowed in a shroud of blue fabric as she had been last spring. The months of incarceration had left her rested and less gaunt than I had seen her at her trial.She eats better in prison than she did at home, I thought, and this saddened me.

  I reminded myself that this woman had killed her husband without pity or remorse, and that she had cruelly butchered his body and left it as carrion for the scavengers of the sky and forest. It is a crime past human forgiveness; only divine mercy could pardon such a sin. But how odd that the wickedness had left no mark upon her person: there was no hardness in her features, no coldness of eye or scowl of unrepentant scorn. Her skin still held the blush of the summer sun, and her pale hair was bound up into a knot at the nape of her neck, framing her face with wings of gold. I remembered John Milton’s poemParadise Lost, wherein Satan is described as the most beautiful of all the angels. Surely this is Milton’s parable made flesh, I thought, but I could not wring any outrage from my heart, only regret and pity for a frightened girl who would never see her child again. Nearly a year had passed since the death of Charlie Silver, a man I had never even seen. It is easy to forget the victim when he is a stranger; it is especially easy to forget him when the accused is a forlorn and fragile creature who seems incapable of evil. Perhaps this is why the law is so inflexible in its strictures on punishment for those convicted of murder. The blindness of Justice protects us lesser mortals from the weakness of pity.

  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 yo
ur 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 Honoris 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 fright 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 wasprovidential, 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.”