The Ballad of Frankie Silver (17 page)

“Really, Burgess! You are quite dreadful. And I implore you not to adopt this teasing tone with Mr. Justice Donnell. The poor man is quite recently widowed, and I am sure he has no heart for levity. His late wife was only thirty when she passed away, poor thing. She was the former Margaret Spaight, the governor’s daughter.”

“Richard Dobbs Spaight,” I murmured to show willing. “Anything else?”

“You will notice a Scots brogue in Mr. Donnell’s voice, by the way. He is a native of that country, but he has spent most of his life on this side of the ocean. He is a graduate of the University of North Carolina, as is Cousin William. The judge is a quiet man, most serene and serious. An altogether superior person, I feel. His home is in New Bern, so we do what we can to make him feel at home and welcome when he is at this end of the state. He has a son and a daughter—”

I took my wife’s arm. “No more, please!” I said, laughing. “My memory has reached its limit. Let this poor Christian go down into the den of social lions before I forget every word you have said to me about their pedigrees.”

*   *   *

I think I acquitted myself well at the Erwin dinner party. I was solemn and respectful in the presence of the gravely taciturn Judge Donnell, and I chatted amiably about the weather and horses, and the activities of mutual acquaintances with William Alexander, who was closer to me in age but equally distant in interests and temperament. It was not I who brought up the subject of Frankie Silver.

We did manage to get through most of the meal without a mention of court business by anyone present, but by the time the dessert wine was being poured into small crystal glasses, we had exhausted the exchange of news and gossip about absent friends, and we had settled the mysteries of weather, politics, and the fate of President Andrew Jackson to our mutual satisfaction. In the slight lull that comes with an overwarm room and a sated appetite, Miss Mary Erwin’s voice rang out from the other end of the long mahogany table.

“Have you heard about our local cause célèbre, Mr. Alexander?”

William Alexander withdrew the wineglass from his lips and set it down with only a suggestion of a sigh. “What cause célèbre would that be, Cousin Mary?” he inquired with grave courtesy.

“Why, that there is a woman on trial for her life in Superior Court next week! Surely you have been briefed about the case?”

Mr. Alexander looked around the table for guidance from his fellow attorneys—the table was rife with them—but we were all careful to maintain perfectly neutral expressions. After an awkward silence during which no one leaped to his rescue, he said, “Oh, yes. The murderess. I hope you are not learning the domestic art of wifely behavior from that unfortunate example, Miss Mary.”

His quick thinking was rewarded with a brace of chuckles from the gentlemen present, and a clinking of glasses indicated that the tension had eased, but my spinster sister-in-law refused to let the matter drop.

“So you have made up your mind that she is guilty, have you?” she demanded.

“So I must. If she is brought to trial, it is my duty as district solicitor to prosecute her,” he replied. “If you are worried about her guilt, you had better speak to those who are defending her.” His gaze sought out his wife’s uncle, a few chairs down the mahogany table.

Thomas Wilson glanced nervously at the judge, who remained impassive, apparently in deep contemplation of his wineglass; then he met the imperious gaze of Mary Erwin. A classical image from my Latin studies at Hull’s School leaped to my mind: Ulysses caught between a deadly pair of monsters, Scylla the rock and Charybdis the whirlpool. Although it seemed particularly apt, I decided against sharing this Homeric inspiration with the rest of the party.

“We shall do our best, Miss Mary. Indeed we shall.” Wilson tried to strike a note of geniality but his voice rang hollow. “Still, you must see that the evidence against Mrs. Silver is very strong.” He glanced warily at the judge, as if he expected that worthy gentleman to rap upon the table with a carving knife and call him to order.

At that point Squire Erwin came to the aid of his struggling dinner guest. “Mary, my dear, you mustn’t badger poor Mr. Wilson about his unfortunate client, particularly when his own involvement in the case is indirect. Mrs. Silver will be defended in court by a splendid young lawyer from Asheville, a Mr. Nicholas Woodfin.”

Since Nicholas Woodfin was not present at the dinner party, Squire Erwin had succeeded in rescuing Thomas Wilson without throwing his colleague to the wolves. Before Mary could pursue the matter, another guest changed the subject, and we all fell upon a discussion of some trivial matter with more relief than interest.

As we left the table, though, I heard Colonel James Erwin murmur, “Has anyone warned young Woodfin about our Miss Mary, do you think? She is far more menacing than his rustic client.”

*   *   *

“Old home week, indeed!” said my wife Elizabeth.

It was Saturday, March 17, the day after my twenty-fifth birthday. I was preparing to leave for the courthouse, where this morning the grand jury was meeting to decide which of the possible cases should go on to trial when the Superior Court met the following Monday.

“Whatever do you mean, my dear?” I murmured, but my attention was on the mirror.

“The grand jury is meeting today, is it not?” I nodded. “And as clerk of court, you selected the jurors?”

“Well…”

“And who did you choose to be foreman of the grand jury?”

I sighed. Sometimes I think people in Morganton know things
before
they happen, so quickly does gossip spread through the community. “Samuel Tate.”

Elizabeth smiled. “Oh, Burgess, you are such a humbug! After all that fuss you made before father’s dinner party about the court being ‘old home week,’ as you put it, because of the lawyers’ family connections. And then, who do you put in charge of the grand jury? Sam Tate!”

“It is a small town, Elizabeth,” I said with as much dignity as I could muster. “Nearly every eligible juror is connected in some way—how
is
Sam connected, by the way?”

“Samuel Tate is married to my cousin Elizabeth, the daughter of Peggy Erwin, that was.” (Peggy Erwin Tate is the sister of Colonel James Erwin, in case you are as obsessed with family connections as everyone else in Morganton seems to be.) “But that is hardly the point, Burgess, as you well know.”

I did know. Apart from his family connections, Sam Tate is hardly the disinterested village yeoman that people seem to think comprise grand juries. Although he is just past thirty and his primary occupation is farming his landholdings at “Hickory Grove,” Sam Tate is a former sheriff of Burke County, and now serves as a justice of the Burke County Court of Pleas and Quarter Sessions.

“I think he is a very fitting choice,” I said. “I realize that the notion of a former sheriff acting as jury foreman might strike the casual observer as an odd and even suspicious circumstance, but he will be very useful. He has a working knowledge of law and procedure, and he can direct the other jurors in a sensible fashion.”

“He is hardly a disinterested party.” Elizabeth’s questions were serious enough, but something in her tone made me think she might be laughing at me. “And hardly an angel of mercy, either, I fancy.”

I knew what she was referring to. Although the incident had happened before I became the clerk of Superior Court, and thus I did not witness it, I had heard the story told more than once. During Sam Tate’s tenure as sheriff, a man had been convicted of a felony that required him to be branded upon the thumb with the letter symbolizing his crime. (
M
for manslaughter, and
T
for thief or any other crime.)

There are many crimes on the law books for which the prescribed penalty is death, but in these enlightened times we choose not to execute everyone who steals or commits some lesser crime, even though the law permits such summary justice. First offenders, especially people who are otherwise upstanding citizens except for this one lapse, are often shown mercy by the court, though when I have witnessed the administering of the alternative and heard the screams, I have often wondered if it is indeed mercy that is meted out.

To distinguish between irredeemable sinners and unfortunate transgressors, therefore, capital crimes are divided into two classes: the unpardonable acts in which the offender was denied benefit of clergy and was executed for his crime, and the other, so-called clergyable offenses, in which the convicted prisoner might plead “benefit of clergy” and thus escape the death penalty by accepting the lesser punishment of being branded on the brawn of the left thumb. The term
clergyable
refers to the origin of the practice. In medieval England, the clergy could claim exemption from the punishments of secular courts. Later this leniency was extended to anyone who could read, permitting the offender to escape the death penalty for the lesser punishment of branding. More recently, “benefit of clergy” was extended to citizens irrespective of their literacy, and more depending upon the nature of the offense. One cannot claim “benefit of clergy” twice, however. The law is not given to the eternal mercy of heaven.

When a court had accepted the prisoner’s plea of benefit of clergy, waiving the execution in favor of the lesser punishment, the sheriff’s duty was to hold the red-hot branding iron to the thumb of the criminal for as long as it took the man to cry out “God save the State” three times. On this occasion, the unrepentant felon, tied to a post and writhing in his agony, screamed out “God save the State!” twice, and then sobbed and gasped, “God damn Sam Tate!”

Sheriff Tate carefully removed the branding iron from the poor man’s thumb and began the procedure all over again, making sure that the requisite phrase was said correctly three times, as prescribed by law. No, Sam Tate was not an angel of mercy, but he was faithful to the letter of the law, and he knew the North Carolina statutes as well as anyone.

“Well,” I said, “whatever Sam Tate’s biases are toward the people of Morganton proper, if indeed he has any, he is sure to be a stranger to all the principals in the Silver case, because they all hail from the back of beyond. Therefore the proper objectivity will be preserved. Sam knows the law. I know of nothing fairer than that.”

“I suppose it’s a foregone conclusion anyway, isn’t it?” she asked as I turned to leave.

“Pretty nearly,” I said. “All her hopes must rest on the trial itself. Perhaps her lawyer can move the jury with his eloquence. Failing that, she is lost.”

*   *   *

The grand jury under Sam Tate’s able direction considered the case against Frankie Silver, her mother Barbara Stewart, and her younger brother Blackston. The facts were presented, and the witnesses heard. When the grand jury retired to begin its deliberations, they argued about what should be done.

One of the more prominent jurors, George Corpening, whose brother David is our state legislator, said: “I say we indict the lot of them! They’re all in this together. Anyone can see that.”

Other voices chimed in to agree with Corpening.

They finally stopped chattering and noticed that the grand jury chairman and former sheriff sat conspicuously silent. After a moment’s silence, Rucket Stanley said, “What do you think, Mr. Tate?”

Sam Tate considered the matter. “Well, boys,” he said, “it’s like this. Trials are tricky things. You can indict ever who you want to, but that doesn’t guarantee that you’ll get a conviction when the trial is over and done with. I’ve seen a lot of cases go to court in my time, and I’ll tell you what’s the truth: indicting all three of these suspects would make me uneasy. Yes, sir, it would.”

“Why is that, Sheriff Tate?”

“Because it suggests that we don’t know who to blame, and that we’re arresting everybody just to make sure we get the guilty party. People don’t like that. Jurors are so contrary, they might end up feeling sorry for the Stewarts and letting every one of them go. I say we ought to pick one of them—the most obvious one—and let that person take all the blame.”

George Corpening was scowling. “But what about the other two?”

“Do you see any proof that they were involved?” The sheriff’s eyes narrowed. “I’m not talking about common sense, George. I’m talking about proof that will stand up in a court of law. All I see in this case is what you call circumstantial evidence. Charlie Silver disappeared, and a week or so later his body parts are found in the fireplace of his own cabin.”

“But according to the witnesses, Charlie Silver’s widow lied!” Corpening protested. “She said he had gone from home, when all the time bits of him were lying in that fireplace.” He broke off with a shudder.

“Exactly right,” said Sam Tate, unmoved by the thought of gore. “Mrs. Frances Silver was caught in a great and terrible lie. And that means that she is not an innocent party. But what about the other two, boys? What
evidence
can you give me to tie them to this death?”

“It stands to reason that a young girl like that wouldn’t have acted on her own,” said David Glass.

“I’m talking about proof,” Sam Tate reminded him. “Can anybody show me proof?”

No one spoke.

“All right, then. Here’s what I propose that we do, boys: we bring back a true bill on Mrs. Frances Silver, and we no-bill her mother and brother. We know she’s in it up to her neck, and I’d rather see her punished for her crime than cast the net too wide and risk losing all three. I say we make it easy on the jury and send them a sure thing. Who’s with me?”

Hands went up. They all were.

*   *   *

A few hours after they began their deliberations, the Burke County grand jury returned a true bill only on Mrs. Frances Stewart Silver. She alone would stand trial for murder.

In view of the strong feelings inspired by the Silver case, the court ordered each of the subpoenaed witnesses in the forthcoming trial to post a bond, ranging from twenty-five dollars to one hundred pounds British sterling, in order to ensure their attendance at the proceedings. These were staggering sums to be required of witnesses, but we felt that it was necessary to make the consequences of
not testifying
just as terrible as the consequences of testifying. We all knew that when cases involving backwoods families are tried in court, the matter seldom ends there. The losing family continues its search for justice with violence and acts of reprisal, particularly against unfriendly witnesses, often for years after the original matter was settled by the court. The urge to avoid the matter entirely must have been strong for the people of Frankie Silver’s community.