Sharyn McCrumb - The Ballad of Frankie Silver

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 this 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?”