Sharyn McCrumb - The Ballad of Frankie Silver

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 over-warm 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.