The Ballad of Frankie Silver

by Sharyn McCrumb

  Now my nephew Avery was a small man, and he had perhaps the more pride and dignity because of it, but he was by no means a coward, nor was he an undistinguished citizen of the Carolina frontier. He had no reason to fear a fellow attorney, for although I say that he was a citizen of the “Carolina frontier,” things had changed a good deal in the two decades since the trial of Frankie Silver. True, there were as yet no railroads in the mountains, but the roads were better now. The population continued to grow, and the cities were no longer rustic hamlets dotted through the endless forest. The Indians had been removed across the Mississippi, the economy was flourishing, and western North Carolina was as pleasant and peaceful a place as one could find upon God’s green earth. We were civilized gentlemen serving the law, and brothers all by the mutual respect conferred by our profession.

  Samuel Fleming cared nothing for the sanctity of the legal fraternity, nor for the peace of McDowell County. He was after blood.

  I was not present when the altercation took place, but I heard many accounts of it afterward, and everyone agreed that Samuel Fleming was abusive and reckless in his manner. When Waightstill Avery tried to edge past his tormentor, knocking him down in the process, the enraged Mr. Fleming flung himself upon the smaller man, pounding him about the head and shoulders with a rock until he was stunned into insensibility. While poor Waightstill sat there in the muddy high street, attempting to get his bearings and regain his footing, Samuel Fleming lit into him with the horsewhip, punctuating each slash with an oath.

  In his dazed and weakened condition, poor Avery could not defend himself. Indeed he was so much smaller and less robust than his opponent that it is doubtful whether he could have given a good account of himself even if he had been perfectly fit. He lay there in the mire, hands braced before him to shield his face and neck from the blows, while blood from the welts on his cheek dripped onto his broadcloth coat and spangled the mud beneath him with flecks of red.

  I would like to think that someone in that great throng of onlookers went to his aid, while other right-thinking citizens pulled Samuel Fleming away and tried to talk sense into him. I never heard of anyone interfering, though, and I am forced to conclude that a crowd watched this shameful performance, and perhaps even cheered it on, with no thought toward rescuing the unfortunate victim.

  At last-no doubt when his stream of invective had given out and his arm was tired-Fleming ceased his attack upon my unfortunate nephew and swaggered off, boasting about the thrashing that he had given to the young turkey cock who would question his competence as a lawyer. Waightstill Avery was helped to a house nearby, where his wounds were seen to, while a servant took a damp rag and tried as best she could to remove the streaks of mud from his coat and breeches. He was not badly hurt, but the shame and injustice of that public whipping festered inside Waightstill Avery worse than gangrene ever cankered an injured limb. In Morganton he made light of the cuts and bruises and kept his own counsel about his feelings toward his assailant, but word of Fleming’s continual boasting reached us in Burke County, and all of us knew that the incident was not over.

  Two weeks after the confrontation in Marion, Mr. Fleming had yet another occasion to appear in court, but this time he was representing clients before Judge Kemp Battle at the new courthouse in Morganton. I call this building the new courthouse even though it is twenty years old, but I am nearly fifty now, and time does not move as slowly for me as it once did. This present courthouse was under construction at the time that Frankie Silver was in jail awaiting her execution, and I remember feeling glad at the time that after the tragic circumstances of the Silver case, we could put the past behind us and begin again the pursuit of justice in a new building. I have since learned that it is not so easy to wipe the slate clean; there is enough tragedy and iniquity in the world to fill any amount of courthouses and judicial buildings.

  I was there when it happened, but I confess that I felt no inkling of the tragedy that was to come.

  Sam Fleming approached the table where Waightstill Avery was concentrating on a point of law in the case at hand. I did not think that Waightstill had even seen Fleming coming, so intent was he upon the argument before the judge, but the incident in Marion two weeks earlier still rankled, and he must have thought that Fleming intended to torment him further. When Fleming was an arm’s length away, Waightstill raised a pistol and pointed it toward his enemy, and before anyone in the courtroom could cry out or attempt to stop him, he fired the weapon point-blank at Samuel Fleming’s heart.

  He was dead before anyone of us reached him, and Waightstill made no move to flee the consequences of his action. He stood there calmly, handed the pistol over to the bailiff, and said that his honor was satisfied now, and that he was willing to be tried for his actions, because Sam Fleming needed killing. And when the facts were put forth in the presence of a jury, Waightstill thought that justice would be done. They led him away, and took him to the jail for form’s sake, but he was out on bond before nightfall. I joined the family council at Belvidere to plan the strategy of my nephew’s defense.

  The trial was held in November 1851, only a few weeks after the incident. Waightstill would not have to languish in jail for months awaiting judgment as poor Frankie Silver had done. He was neither poor nor friendless. When the day came for William Waightstill Avery to appear before the court in Morganton to answer for the death of Samuel Fleming, he was represented by four members of counsel, all gentlemen that he could count as friends, and all distinguished attorneys, if I may say that without boasting, for I was one of their number.

  So was Nicholas Woodfin. I knew him better now than I did all those years ago, when, as a newly fledged attorney, he had defended Frankie Silver. Now he was counted one of us, a kinsman of sorts, for he had been married to Eliza Grace some dozen years now.

  The two other members of counsel were even more prominent men in the state, and perhaps they were chosen for their eminence more than for their legal skills. Mr. Tod R. Caldwell and General John Gray Bynum of Rutherfordton were both lawyers, but both had gained distinction in the political sphere rather than in the courtroom.

  Tod Caldwell was an Irishman whose grandfather had been exiled from the old country in the rebellion of 1798. His father had been a shopkeeper in Morganton, and young Tod, who was a year or two younger than my nephew Waightstill Avery, had clerked in his father’s establishment before his own talent and ambition had led him off to study at the University of North Carolina. He simultaneously read law under the tutelage of David Lowry Swain, and became the first person ever to graduate from the university and receive his license to practice law at one and the same time. Then he went into law practice in Morganton, entering politics about ten years ago, when the county elected him to serve in the North Carolina House of Commons with our other county delegates, Mr. O. J. Neal and William Waightstill Avery. The two young men were friends and adversaries throughout their lives, for a town like Morganton is hardly big enough to cage two such lions. I have often thought that one of them will end up being governor. I had not thought that the other would end up on the scaffold.

  “He is to have four lawyers?” I said to Woodfin when we all assembled a few days before the trial.

  Nicholas Woodfin smiled. “There is no one so cautious-or so rightfully afraid-as an attorney who must face trial by jury.”

  “I suppose it is mainly for show,” I said. “To demonstrate to the jury that the most prominent citizens of western North Carolina stand behind Waightstill in his hour of trouble.”

  “Mostly that,” Woodfin agreed. “I believe I am to do most of the speechmaking, since I have the most trial experience.”

  “You have made quite a name for yourself in the courtroom since we first met,” I told him. “We are all glad that you are making an exception to your rule about not appearing in capital cases.”

  Woodfin nodded. “Waightstill is family as well as a friend and colleague,” he reminded me. “Besides, I do not really consider thi
s a capital case.”

  “Waightstill shot the fellow in open court. I saw it. It was no duel. I do not think that Fleming even saw the weapon. But, of course, as one of Waightstill’s attorneys, I cannot testify.”

  Nicholas Woodfin smiled. “Nor can Waightstill, since he is the defendant, but from what I hear, there were witnesses aplenty to the horsewhipping incident in Marion. I think we can show a jury that Sam Fleming needed killing.”

  “But why not challenge the fellow to a duel?” I asked. “Lord knows there is family precedent for that. Waightstill’s grandfather and namesake once got into just such a quarrel with a fellow lawyer over in Tennessee. They agreed to a duel, and when the time came for the battle of honor, each man carefully fired a shot over the head of the other. They left the field the best of friends-or so the family says.”

  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 havenot 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-washanged 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 die
d 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.”