The Ballad of Frankie Silver

Chapter Five DEPUTY SPENCER ARROWOOD was spending another late night working at his desk when the call came in. The hamburger, seeping grease through its waxed-paper covering and onto the paperwork beneath it, was supposed to be his dinner, but it had long since congealed into a sodden lump, and he could not bring himself to touch it, even to throw it away.

When the phone rang, he was so groggy from lack of sleep that he picked it up to reinstate the silence rather than to talk to anyone.

“Uh—Wake County Sheriff’s Department.”

“Mr. Miller?”

“No. This is his deputy.”

“Oh. Spencer. It’s Harmon here, out to the truck stop and all. How you been?”

“Fine, Harmon. What can I do for you?” They had been in high school together, nodding acquaintances now, not much more than that then.

“Well, Spencer, the radio station was talking about those murders out on the trail. Terrible thing. I hated to hear that—a pretty young girl and all. And, you know, they said that you wanted people to report anything suspicious.”

“Yes?”

“There’s been a kid down here at the truck stop. Probably nothing, but I thought I’d better call you.”

“A child? How old?”

“Not a child. A kid. Well, seventeen or so. Not somebody you’d sell a beer to without having a mighty long look at his driver’s license.”

Spencer tried to keep the impatience out of his voice. He didn’t have time for liquor-law violations. “So what about him?”

“He’s been going around trying to sell jewelry to one or two of the truck drivers in here.”

“What kind of jewelry?”

“A gold chain, a woman’s watch with a band of gold and silver intertwined, and a ring.”

“Wedding ring?”

“Looked like a high school class ring to me. Big silver-colored one with a blue stone, and some carving on the side. I didn’t get much of a look at it. He shoved it in his pocket when he saw me coming down to that end of the counter.”

It was probably nothing, Spencer thought. At best, it would turn out to be evidence of an unreported burglary. Some vacationing couple would call soon to report their hotel room robbed, or their home burgled. Still, he had to check it out. There weren’t any other leads to follow.

“Is he still there?”

“Yeah, he’s playing pool with a couple of the truckers. I think he’s betting on the game. He’s putting up the jewelry, and the truckers are betting cash. You’d better get here before he loses it all, and your evidence rolls out of here six ways from Sunday.”

“Keep an eye on him. I’m on my way.”

Sometimes you get lucky, Nelse Miller had said. In the small hours of the morning, Nelse had been apt to find philosophy at the bottom of a shot glass, or in the glow of his last cigarette. He maintained that for every case that stays unsolved by chance—no one happened to see anything, no one happened to find the weapon—there is another case that is solved by the same random luck. “This time the coin came up your way,” he’d said when he got back to find the suspect already in custody and the evidence tagged for trial.

Now Spencer wondered whose luck it had been—his windfall or Fate Harkryder’s misfortune? He found the kid at the truck stop, still shooting pool with a couple of truckers. Harmon pointed him out. Spencer recognized the scraggly youth with the peach-fuzz mustache as one of the Harkryders, and he’d asked to see the jewelry the kid had been trying to sell. The kid had made a move, as if to put his hand into the pocket of his jacket, but instead he had shoved the player with the cue stick against Spencer Arrowood and made a run for the door. He’d been about three truckers short of a getaway, and instead of making it to his car, he found himself facedown on the sticky floor of the truck stop, while the deputy

cuffed his hands behind his back.

“It’s your move,” Alton Banner told his patient, tapping the chessboard with a black pawn.

Spencer blinked and the carved wooden pieces came back into focus, but he had forgotten now what maneuver he had been setting up. “Did we miss anything?” he asked his opponent.





The old doctor shrugged. “Are you referring to my designs on your king’s bishop, or are you over there wool-gathering again?”

“I was thinking about the night of the Trail Murders,” said Spencer. “When you and I were at the crime scene. Is there anything we overlooked? Anything you’d do differently now—with more experience, I mean.”

“Speak for yourself, boy. I was fifty-one back in those days, and I can’t say that experience has improved me much since then. As for technology, maybe there’s something we could have gained if we’d had Luminol and DNA testing, and all the rest of the new tools, but there’s no use worrying about that now. The evidence has long since degraded. It went into the trash the decade before last. What good will it do to dwell on that now?”

“I want to be sure. I’ve never had anybody executed before—and it’s on my say-so. The evidence was circumstantial.”

“Circumstantial. Would you listen to yourself? Most of the people in prison are there on circumstantial evidence, aren’t they? Even felons are smart enough not to commit the crime in front of a bunch of eyewitnesses. Excepting John Wilkes Booth, that is.”

Spencer smiled. “I know that. And most killers are not inclined to think that confession is good for the soul, either. We had a solid case. He had Emily Stanton’s jewelry in his possession and was attempting to sell it, which gave us a motive of robbery. His blood—type A-negative—was found at the crime scene. He had no alibi.”

“Are you trying to convince me or yourself? Because if you’re saying all this for my benefit, let me say now that I never had one moment’s doubt from that day until this that you had the killer. He had A-negative blood, Spencer. That’s rare enough so that if you walk into a blood bank and offer to give them some, they start dancing for joy and offering you refills on the orange juice.”

“I just wondered if there’s anything I’ve forgotten about that case.”

“My memory is long. I can still see those two young people crumpled on the ground in that clearing, looking as if they’d been caught in a threshing machine. No, I never will forget that. So don’t ask me to spare too much time helping you agonize over Fate Harkryder’s execution, because the night we found the bodies of his victims, I could have shot him myself without a flicker of hesitation. I swear I could’ve.”

Spencer pushed a rook forward. “My summons to the execution said that as sheriff of the prisoner’s home county, I could appoint another witness besides myself to attend as well. Would you like to go?”

Alton Banner sighed. “I would not,” he said. “I have spent a lifetime trying to keep people from dying, and I have no intention this late in the game of watching it happen on purpose. You go, if you feel it’s your duty, but my responsibilities in this case were all discharged twenty years ago. I’m done with it.”

The sheriff nodded. “I’ll tell them I relinquish my second witness, then. The forest ranger, Willis Blaine, is dead. I asked Martha to check on that a couple of days ago. Aside from him, I can’t think of anyone else who ought to be there.”

A few moments passed in silence while Spencer stared at the chessboard, but Alton Banner knew that chess wasn’t on his mind. “What about your other pet case?” he said loudly, hoping to distract him. “Was the evidence against Frankie Silver circumstantial?”

Spencer had finished reading all the material Martha had brought him about the 1830s murder case. So far he saw no reason to question the decision of his nineteenth-century counterpart. Given the circumstances, he could see no choice but to arrest Frankie Silver for murder. “She lied,” he said. “When Charlie Silver disappeared, Frankie went to her in-laws and said that he hadn’t come back to the cabin.”

“Whereas most of him had . . .” drawled Dr. Banner. “I know the story. Doesn’t prove she killed him. Maybe she was covering up for someone.”

“Then she’s not innocent,” said Spencer. “Accessories before the fact get hanged, too. There appears to be no evidence of anyone else involved, though. Frankie Silver was never accused of having a lover. And her father and older brother were on a long hunt in Kentucky when the crime was committed.”

“You sure about that?”

“All the storytellers say so, and I tend to believe it, because they were never arrested. If they’d been around, they would have been the constable’s first choice for suspects.”

“All right, she was guilty. I wonder what bothered Nelse Miller about the case then?”

“The fact that it doesn’t ring true,” said Spencer. “A little eighteen-year-old girl in a cabin with a year-old baby. A one-room cabin. Charlie Silver’s body was cut into little pieces and parts of it were burned in the fireplace. How long would that take, anyway?”

The doctor shrugged. “Depends. What do we have to work with?”

“It’s 1831. An ax, maybe. A hunting knife.”

“A couple of hours, easily. More if she isn’t used to butchering. If you don’t hit between the vertebrae just right, it could take you an hour just to get the head off. It would be messy work. I wonder she had the stomach for it. Him being her husband and all.”

“She was afraid of being caught,” said Spencer. “Fear can make you do extraordinary things.”

“Maybe so. But it’s not something you’d expect an eighteen-year-old girl to be capable of. I know of no precedent.”

“Frankie Silver was a pioneer. People were tougher in those days.” Spencer pushed a pawn toward the center of the board. “Your move.”

“Checkmate.”

Spencer managed to keep the Harkryder case at bay for two more games of chess, both of which he lost, because his mind kept straying to matters of greater consequence. At last he was alone again, having

promised to make an early night of it in deference to his weakened condition. Instead he was sitting in his leather chair with the yellowed manila folder in his lap, sorting through the evidence one more time.

The physical evidence tied Fate Harkryder directly to the scene of the crime—no question about that.

That afternoon at the truck stop, Spencer had arrested Fate Harkryder on suspicion of murder. The jewelry was impounded as evidence of his guilt. The items tallied exactly with the list Spencer had written down during his phone call to Colonel Stanton: the woman’s UNC class ring containing the initials EAS, the silver and goldtone watch, and a gold chain.

Spencer took the prisoner back to the jail in Hamelin for questioning, and he notified the TBI that he had a suspect in custody. He’d also left word with Nelse Miller, wherever it was he’d gone. An arrest in a major murder investigation: that would bring the old fox home. Spencer was sure of it.

Deputy sheriff Spencer Arrowood read the suspect his rights. “Do you understand?” he said as he put the card away. “You can have a lawyer if you want one.”

The sullen young man sat with his feet wrapped around the legs of the chair, scowling up at the officer questioning him. His long hair was unkempt, and his baggy clothes were several days past needing a wash. Spencer had a good mind to hose him down before he put him in the jail cell.

The prisoner shrugged. “What do I need a lawyer for?”

It wasn’t the deputy’s job to tell him. He said, “I’m just telling you that if you do want one, you can call him now. And if you can’t afford to hire an attorney, we can have one appointed to represent you.”

He shrugged. “I don’t need no help to say I didn’t do it.”

“Where did you get the jewelry?”

Another shrug. “Found it.”

The interrogation had yielded precious little information after that. Fate Harkryder sat there sullen and silent, refusing all offers of food and soft drinks with a quick shake of his head, as if he were determined to say as little as possible.

At first Spencer tried asking simple questions in a firm but courteous tone. When that got nowhere, he switched to shock tactics, describing the mutilated condition of the bodies and declaring that an unrepentant killer would get no sympathy from judge or jury. “If you want to be as dead as they are, you just keep sitting here saying nothing,” he said. “You can’t talk your way out of having that jewelry in your possession.”

“Doesn’t prove nothing.”

The jury thought otherwise.

* * *

Joe LeDonne hated the telephone. Its shrill peal was mechanical nagging as far as he was concerned, and he never answered it without an inward curse at the interruption. If he had not been in law enforcement, he would not have had one in his house. It was ironic, he thought as he stared at the

instrument, an electronic spider on his desk, that so much of police work required proficiency in telephoning.

He and Martha had agreed to give it one more day before they told the sheriff about the homicides. The TBI was conducting its own investigation, but Martha and Joe were going to complete all the scut work of canvasing for witnesses, so that there would be little for Spencer to do by the time he was informed of the case. Joe didn’t think there was much chance of keeping him on the mountain once he heard about the new Trail Murders, but he reasoned that the sheriff was bound to find out sooner or later, and the news had better come from them.

So far they had played it by the book, with all the thoroughness they could pack into sixteen-hour days. They had investigated the crime scene, and then gone over the site again when the TBI arrived. The next few days had been spent talking to residents in the vicinity of the site, questioning people at the local bars and cafés, and to suppliers of camping goods and army surplus equipment.

Martha had refused to believe that the two Trail Murders, separated by twenty years, were in any way connected, but she had studied the old case file anyway. Willis Blaine, the forest ranger, was dead, but she had questioned Harmon Ritter, still a fixture out at the truck stop. She had even tracked down the two firemen from Alabama, but they had not been able to tell her anything helpful. She had expected no link between the two cases, and she found none.

LeDonne focused his attention on the individuals most likely to be involved in criminal activity. First he checked the list of parolees in residence in the area, phoning the ones whose crimes had included robbery or violence and checking on their current employment status. He had not ruled out the ex-cons entirely, but he was reasonably certain that they would have to look elsewhere for the killer.

That morning he had called the park service and asked that they fax him a copy of the sign-in sheet from the date of the murders from the two shelters on the Appalachian Trail nearest the crime scene. Maybe one of the hikers saw something. Maybe one of them was the man they were looking for. He had spent several hours in the tedious process of tracking down addresses and phone numbers via the Internet and calling the hikers or, in some cases, E-mailing them. Most of those who were hiking all the way to the end of the Appalachian Trail in Maine could not be reached, but he had been able to reach a fair number of weekend campers, and park visitors who had hiked for only a few days. It was now early evening and LeDonne was still at it, reasoning that the dinner hour was the best time to catch people at home. Beside the list of names, the cup of coffee that was his dinner grew cold.

He had just got through to Jeff Garrison in Maryland. LeDonne explained who he was and what he wanted. Days of practice had honed his explanation to a concise summary in the fewest possible words. When he finished, there was a silence on the other end of the telephone.

“Sir? Are you there?”

“I’m thinking.” Late twenties, LeDonne thought, analyzing the voice. Educated. White-collar worker. Maybe a lawyer. Not rattled by the idea of talking to a law officer. He waited.

“I’m trying to sort out the different days of the trip.”

“We’re right on the North Carolina line,” LeDonne told him. “Near Erwin. Unicoi. Do you remember anybody who looked—well, out of place—on the trail?”

“Oh, right. Let me see. . . . There was a guy with hunting dogs. I didn’t think he ought to be in a national

park.”

One of the Jessups,thought LeDonne. “They do that around here sometimes,” he said aloud, making a note to find out who had been out with the dogs, and to question them also.

“Other than that, there were just the usual folks doing the trail. It’s pretty crowded this time of year, you know. Lot of old dudes—the Woodstock leftovers, you know—out communing with nature, and some really buff women doing the Xena thing. All kinds, really. And guys that were obviously locals. Rednecks.”

LeDonne resisted the urge to tell Mr. Garrison how much he disliked talking to bigots. He had to be polite to potential witnesses, and besides, the exercise would be pointless. He was sure that the smug young man would be bewildered to be accused of prejudice. Political correctness did not require

tolerance or courtesy toward white Southerners.

“Oh, wait. Speaking of locals. There was one guy out there who looked pretty odd.”

“How so?”

“He looked like he ought to be going to computer class instead of out backpacking. Skinny little guy

with pens in the pocket, and dress shoes. And a necktie. In the woods.”

“Did he have a backpack?”

“Yeah. I think so. A bookbag, really. Not serious camping gear.”

“How old would you say this individual was?”

“Late teens. Early twenties. Hard to say.”

“Can you give me a description of him? Height? Hair color?”

“Not really. I just looked at him and thought: Nerd,and I kept walking.”

“Nerd, huh?”

“Yeah. Oh, wait there is one other thing I remember. The guy had an earring. You know that science

fiction TV show about the space station?”

“No.”

“Well, the people from this one planet always wear this odd kind of double earring. And he had one of those. So I knew he was a space cadet. I wondered what he was doing out hiking, instead of shooting down aliens in the video arcade.”

“If I find him, I’ll ask him,” said LeDonne.

Fate Harkryder was having the dream again. It was dark, and he could not see where he was, but he knew, the way one does in dreams, that he was dead. He could not remember how he came to die, or whether there was any pain involved in the leaving of his life: all he knew was that he was dead and it was very dark. He kept still for a moment, listening for his own heartbeat or the sound of his lungs drawing

breath, but there was only stillness and silence. He felt the oppression of a confined space, and he knew that he was in a box deep in the ground, but he was somehow conscious. Perhaps there had been a mistake and he was not dead after all. He had heard tales of men on the gallows who were revived after being cut down from the hanging rope, and of an electrocuted prisoner needing two or three jolts of current to finally stop the heart. Ethel Rosenberg—the convicted spy in that fifties atomic-secrets case—went to the electric chair at Sing Sing. Her husband had died on the first round, but they’d had to electrocute her a second time to make her die. Maybe his execution was over and he had been rendered unconscious, but not killed. He would shout for someone to let him out, but when he tried to open his mouth, he found that it had been sewn shut, and he could not open his eyes, because they, too, were sealed with nylon thread. He tried to lift his arms to pound on the lid of the coffin, but he could make no movement with his dead arms. The screams stayed inside his mind, caught behind sewn-shut lips, echoing in the dark.

He woke up then. The same place in the dream that he always awakened, to the same six-paces-by-nine-paces cell, filled with his books and his calendar pictures of mountains.

“Hey, Milton, you out there?” It was two o’clock in the morning, but nobody sleeps soundly on death row. Fate was shivering, even in the breathless heat of a Nashville summer night. It was not completely dark. It is never completely dark here. He listened for a sound from beyond the wall. “Milton?”

Milton, his neighbor, a skinny young junkie from Memphis, who copped the death sentence in a drug hit, didn’t answer. Fate didn’t like Milton much—but maybe, he reasoned, that was the point. Nobody that you could like very much ever made it to death row these days, because a jury wouldn’t ask for the death penalty if they could find any redeeming qualities in the accused. In the old days, maybe, but not now. Public opinion and liberal lawyers were making it harder and harder to execute prisoners, so it was mainly career criminals and second-time killers who made it into Pod Five now. Fate wondered if a new trial would get him taken off the list, but that didn’t seem likely now, as the dream reminded him.

“Milton? You up?”

Milton would stab his grandmother in the back and take bets on which way she’d fall, but at least he was there, and awake, and alive, and if anybody could understand what it feels like to dream you’re dead and know that the dream is going to come true real soon, it would be another condemned man on the row. He was better than nothing.

“What’s eating you, La-fay-ette?” The singsong drawl flowed out of the shadows; made him wonder if Milton could sing.

“Just wanted some company. Bad dream is all.”

Silence, and then a rumbling laugh. “Time is getting short, ain’t it? You dream you were in Virginia, La-fay-ette?”

“Dreamed I was dead. Buried alive. Couldn’t get out. Couldn’t scream for help.”

“Yeah, you musta been in Virginia all right, then,” said Milton. “They been killing prisoners right and left over there. You dead, you must be in Virginia, ’cause they damned sure ain’t killed nobody in Tennessee in thirty-some years. I don’t reckon they’ll start now with your sorry ass.”

“The appeals have all been denied.”

“I got money riding on your continued existence, homeboy. Well, cigarettes, anyhow. Two packs of Marlboros says you’ll be alive and kicking come New Year’s Eve.”

Fate took a long breath and waited to see if he felt any better. He didn’t. “Milton? I want to be cremated.”

“After you gone to the electric chair?”

“It’s the dream. I’m in a box and I’m dead but I’m still conscious, and it’s dark and I can’t get out. My mouth is sewn shut.”

Milton was silent for some minutes, and Fate had begun to think that he had drifted off to sleep, but then he laughed and said: “Cremated. Don’t you beat all?” He laughed again. “ Cremate your ass.Man, you know what I heard about Old Sparky? They say that the death squad has to wait half an hour before they even touch the body, it gets so hot. It’s cooked from all that juice they run through you. Sometimes the skin catches fire, they say, and the eyeballs fry right on your face. And you think you’re gonna stay conscious through that, homeboy? You won’t have nothing left to think with by the time they put you in the ground to cool off.”

“I want to be cremated. If they’re going to burn me, they might as well finish the job.”

Burgess Gaither

APPEAL My carefully written appeal went off to Raleigh on Newland’s stagecoach, as did Judge Donnell himself. Both would reach the state capital in three days’ time, but I knew that many weeks would pass before I received a reply from the North Carolina Supreme Court regarding the fate of Frankie Silver.

I watched the stagecoach lurch along the pike, churning up black mud in its wake, until at last it disappeared into the pines in the distance. I wondered if Mrs. Silver could see the road from the window of her cell. It is a high, barred window, and perhaps she is too small even to be able to reach it, but at least it will afford her a glimpse of the sky, and I must keep reminding myself that it is more than her poor young husband will ever see again. At least she has another summer yet to live, while the learned jurists in Raleigh deliberate. It should not take them long to consider the matter, for my summary of the trial consisted of a single page, simply stating the facts of the case and the nature of the defense’s objection to the verdict. I had not written very many appeals in my brief career as clerk of court, but the judge had read over it carefully, affixed his signature to the document, and informed me gruffly that it would do. I did not care to ask him if he thought that my eloquence would win the prisoner a new trial.

I had not seen Frankie Silver since the close of the trial, but I had heard her weeping.

On Friday, when the business of court had ended for the day with the conviction and sentencing of Frankie Silver, I had occasion to walk outside, for the day was mild and sunny, and I was grateful for the arrival of spring, however tenuous its hold on the weather in late March. The crowds had dispersed now, some to make the long ride home, but far too many others would pack into the taverns, celebrating the triumph of justice, or at least their own good fortune in knowing that it was not they who would be hanged. I could hear the sounds of shouting and raucous laughter far off down the street, and I resolved to go straight home tonight, for I did not want to mingle with the revelers. I thought that the sight of spring’s new leaf, almost golden in the sunlight, and deep breaths of brisk mountain air would do me more good than all the ale in McEntire’s.

The prisoner had been led away by the jailer, still in that walking stupor she had effected since hearing her death sentence pronounced. Now she was locked away in the upstairs jail cell reserved for female prisoners, where she would spend the remaining weeks of her brief life. I wondered if a clergyman had called upon her, for surely she would be in need of spiritual comfort on this bitter day.

Before I could think better of it, I directed my steps toward the frame house that served as the jail. I knocked on the door—just a tentative tap, for I was already thinking better of my impulse and wishing I had not come, but as I turned to leave, Gabriel Presnell himself opened the door with a thundering scowl that eased when he saw that it was I.

“Evening, Mr. Gaither,” he said. I saw that he was holding a pistol at his side, and he lowered it sheepishly as he recognized me. “I thought you might be one of them no-account sightseers wanting a look at the prisoner. Offered me money, one of ’em did.” He looked as if he wanted to spit.

Presnell opened the door wide enough to let me in, and as I stepped inside the narrow entryway, I could hear a low-pitched wail from above the stairs.

“I didn’t mean to trouble you,” I said hastily. “Is Mr. Butler here?”

“No. There didn’t look to be trouble after the verdict, so he left the watch to me. He’s up home, if you’re wanting him.”

Suddenly I felt foolish. “I just thought I’d inquire—that is, I wondered whether the parson has been to see her. Mrs. Silver, that is. To say a prayer with her, perhaps. It would be a kindness, wouldn’t it?”

Gabe Presnell jerked his head in the direction of the keening noise. “She won’t be seeing nobody tonight. She’s crouched up there in a ball underneath the window in her cell, bawling like a branded calf.”

“Has she said anything?”

“No. Just wailing. My wife is up there trying to calm her down, so’s we can all get a bit of rest tonight.”

“That’s kind of her,” I said, backing toward the door. “I’m glad to know that the prisoner isn’t left alone right now.”

“It’s more than she deserves,” said Presnell.

“Well, I suppose it is,” I said, not wanting to debate the matter on the threshold. “But we are bidden to be merciful, except in that last measure of justice which she must shortly undergo.”

“That’s as may be,” said Presnell, “but charity is hard to come by with all these rowdy sots a-knocking on the door every whipstitch, and that caterwauling from herself up yonder to be borne.”

“It will all be over soon enough,” I told him.

I rode home in the chill March wind, taking no joy in the signs of spring around me. It had been a long, wearying day, and I found that I could not rejoice in the verdict, whether justice had been done or not. The red-tipped branches of the budding oak trees made me think of fingers dripping blood in the forest, and I shuddered, thinking of Charlie Silver’s red hand lying in a clump of snow, clutching at nothing. The trial was not over for me. I had yet to write the appeal. I dreaded an evening of toil by lamplight, while

my wife and her family enjoyed a pleasant conversation by the fireside.

Five of the Erwin sisters and their young cousin Miss Eliza Grace McDowell were waiting for me in the great hall at Belvidere, sipping tea and taking turns pacing with anticipation. One of the younger sisters was making a halfhearted attempt to piece out a tune upon the rosewood piano. When I appeared in the doorway, they stopped and stared at me openmouthed, waiting for a sign.

I shook my head and they shrank back with soft cries of distress, but while I saw dismay upon some of their faces, and polite regret on others, I did not detect surprise. We knew, we all knew, what was coming.

I sank down wearily on the sofa and stretched my hand out for a cup of tea before I let them prevail upon me to tell what had happened at the trial.

“Please, Mr. Gaither,” said pretty little Eliza McDowell. “Mr. Woodfin seemed so eloquent and so . . . noble. Could he not persuade the jury to be merciful?”

“He tried, Miss Eliza, but to no avail,” I said, suppressing another spark of irritation at Woodfin’s pervasive charm. The Erwin ladies grouped around me so that I felt like a honeybee smothered in the petals of a dozen silk frocks as I told my tale. They all looked so concerned, but so puzzled, over the turn of events we had examined in the courtroom that day. How could a young woman kill her husband? How could a poor woman receive second-best justice? They knew no more of Frankie Silver’s frontier existence than hothouse flowers know of ditch lilies. How could I stem their questions when I had no intention of enlightening them about the realities of the world past Belvidere?

I looked into the sweet, childish face of Eliza Grace McDowell, so similar in age and feature to Frankie Silver herself, and found myself wondering what seeds of murder might lie in that child’s innocent heart. Eliza Grace is the granddaughter of the two McDowell brothers, one a colonel and the other a general in the Revolutionary War, and the old folks tell tales of Miss Eliza’s great-grandmother Margaret O’Neil McDowell, who faced down the Tory soldiers as they were sacking her very home. With such ruthlessness in her bloodlines, surely Eliza Grace should be capable of the same ferocity that the jury found in Frankie Silver, and yet I could not imagine this cosseted young woman striking anyone in anger, or summoning up any passion that would unleash a whirlwind of violence. That patriot lady Margaret O’Neil McDowell might have understood the hardship and danger of the frontier, but she had lived generations ago, and since then her descendants had known only wealth and privilege.

Is it their upbringing, and the fine character of the aristocrat, that separates them from the sins of the murderess, I wondered, or is it only a matter of simple good fortune? Is Eliza Grace as capable of violence as any murderess, but innocent only because she has never suffered whatever torments led Frankie Silver to her crime? I put the thought aside. The law is my profession, and it must judge people by what they have done, without concerning itself with whether or not life has treated them fairly, for to do so would be questioning God’s will. There are some things we are not given to understand. But I did not pity Frankie Silver any the less for it. She was a fair and tender young creature, and she would have a hard life and an early death, while the fine ladies here before me lived measured, ornamental lives, innocent of drudgery or danger. They were no more beautiful or clever than the defendant, but they were wellborn, and that counted for everything. I could find no justice there. Perhaps there is a different kind of justice in heaven.

“Do tell us what happened, Burgess,” said my wife Elizabeth, tapping my arm. “You seem quite dazed, my dearest.”

“I am weary,” I said. I took a sip of my tea and withdrew from my reverie. “The trial was most unusual. Instead of a quick session convened to hear the verdict and set the sentence, there was more testimony this morning.”

“Surely that is most irregular.” Miss Mary Erwin was watching me closely, and I hoped she would not ask me what I thought of the day’s events.

“Well,” I said, “it is unusual.” They pressed me for more details, and although I hesitated to discuss such delicate matters with gentlewomen, their demand for the particulars overcame me, and I told them as best I could what had happened today in the courtroom.

“The witnesses changed their stories?” said Miss Mary when I had finished. “But this is monstrous!”

“Surely the testimony was a lie,” said Elizabeth. “They cannot hang the poor girl on the basis of false witness, can they?”

“What did Mr. Woodfin say about their treachery?” Eliza McDowell wanted to know.

I shook my head. “The witnesses claimed that they had reconsidered their testimony, and that upon reflection they had remembered the events more clearly. This may, of course, be true.”

“So they found her guilty,” said Miss Mary Erwin. “I feared that they would. Was judgment passed?”

“Yes. Mr. Donnell pronounced the death sentence. In a case of murder, there is no other remedy. Of course, it may not come to that,” I added hastily, seeing their stricken faces. “I am writing the appeal myself, and I shall take care to stress the change of testimony and the unsequestered witnesses.”

Elizabeth looked around the room triumphantly. “There!” she said. “I told you it would be all right! Burgess will save her!”

Her sisters, undeluded by wifely affection, looked as doubtful as I felt. Juries’ decisions are rarely overturned by the State Supreme Court unless grievous errors have been made in the trial procedure. The Erwin sisters, wives and daughters of attorneys, would know this as well as I when they put sentiment aside, but no one contradicted my loyal wife. We found ourselves talking at cross-purposes in our haste to change the subject.

Miss Mary sat in glowering silence for a good while, and then she said, “We must not forget this poor creature who languishes in the jail. We must visit her.”

I had opened my mouth to protest this outrageous suggestion when my sister-in-law added, “Did our Lord not instruct us to visit those in prison as well as those who are sick?”

Mary Erwin can cite Scripture for her purpose.

The summer passed uneventfully in Morganton. We reveled in the hot weather, cast our woolen clothes aside, and savored the June tomatoes, glad to be released from the confinement of winter. Then, just when we had put the bitter cold and snow out of our minds as if December would never come again, the flies, the choking red dust, and the breathless heat drove us back indoors once more to wait for the cooling winds of autumn.

I did not speak much about the Silver case, for in truth there was nothing to do but wait upon the

pleasure of the Supreme Court in Raleigh, but my reticence about the case did not banish it from the thoughts of the ladies.

One breathless afternoon as I sat in the library at Belvidere reading over a packet of new books just arrived from England by way of Wilmington, Miss Mary Erwin appeared in the doorway, clad in a white morning dress trimmed with lace, and carrying a cloth-covered basket, but she looked no less formidable for this maidenly affectation. She is a spinster of six and thirty years, ten more than my wife, her sister Elizabeth. Some of the awful seniority of an elder sibling must have transferred itself to Miss Mary’s attitude toward me, for I always felt like a sweating, lumbering oaf in her presence, and I’ll swear that my tongue grew too big for my mouth at times when I had to speak with her.

I covered my confusion, of course, with bluff heartiness. “Good morning, Miss Mary!” I said gaily. “Are you off on a summer picnic to the wildwood?”

She looked at me as a cat might look at a worm. “No, Mr. Gaither,” she said. “I hope I have better things to do than waste my days in idleness.” She looked pointedly at the illustrated paper that I was reading, and I fought down the urge to stuff it under my coat. “May I trouble you for a few moments of your time?”

Her tone suggested that since I had nothing better to do than to read frivolous tripe, I might at least make myself useful by doing her bidding. I put the paper aside and rose to my feet with a heavy heart. “I am your servant, of course, Miss Mary.”

“Thank you.” She drew on her gloves with an air of brisk authority. “Catherine and I wish to go and see the prisoner, and we would like the escort of a gentleman to town, and to wait for us at the jail. You will suit the purpose admirably. You need not accompany us upstairs to the poor creature’s cell.”

“You wish to see . . . the prisoner? Mrs. Silver?”

“Certainly.”

“Then I would consider it a privilege as well as my duty to accompany you,” I said, inclining my head to suggest a courteous bow. I had been dreading this gambit for weeks, and now that it had finally come, I felt an odd mixture of apprehension and relief. I wondered what the squire would say about his daughters going to visit a murderess, and whether I should have to shoulder the blame for their excursion. Still, I thought I had better go to keep an eye on them. “Is the otherMrs. Gaither not to be of the party?”

I meant my wife, of course. Miss Mary’s sister Catherine is also Mrs. Gaither, as she is the widow of my late brother Alfred, and so she is doubly my sister-in-law, but my wife was apparently not included in the outing with her older sisters.

“Elizabeth has a dress fitting,” Miss Mary informed me. “She may go at another time. We have promised to report the details of our visit to the rest of the household.”

We sent for the open carriage, as the day was fine, and we trotted along the few miles to Morganton with little conversation passing among us. Catherine is a meek and gentle lady, almost midway between the ages of her sisters Mary and Elizabeth, but after a few remarks about the weather and other inconsequential topics, I find myself with nothing to say to her. I am always afraid that some chance remark of mine will remind her of poor Alfred, and I live in fear that I will induce a flood of tears whose tide I will be powerless to stem. I contented myself with smiling at poor colorless Catherine, swathed in her purple dress of late mourning. I hoped that my resemblance to Alfred would not make her weep, but

she seemed to bear the sight of me calmly enough.

As we drew closer to town, I felt that it was necessary to issue a few words of instruction to my sisters-in-law about prison visitation. “Mrs. Silver may not wish to see you at all,” I cautioned them. “And if she does, the jailer will not want you to stay with her long, or to say anything that may upset her.”

“Quite the contrary,” Miss Mary called out above the clatter of the wheels. “We will set her mind at rest by telling her that petitions are being drawn up to secure her pardon from the gallows.”

“Now, you must not give the prisoner false hope, either,” I cautioned her. “It is cruel to make her believe that she will be saved from her punishment.”

“I hope I never say anything that I do not believe to be true,” she said reprovingly.

I saw that she really believed this, and so I did not smile, but I was thinking that no one could exist for even a day in our carefully polite society by telling the unvarnished truth. I kept silent for the remainder of the ride, which was itself a lie, for she thought that I agreed with her.

The Morganton jail was a two-story white house set in a well-kept lawn only a short distance from the courthouse. It was not the foul pit that one imagines for prisoners in Philadelphia or Boston—or even Raleigh, for that matter, but despite that, I suspected that it would seem terrible enough to my sisters-in-law. I wondered if I should prepare them for the scenes to come, but the set of Miss Mary’s jaw persuaded me to keep silent. The more unpleasant the experience, the more satisfaction the ladies would derive from having done their duty.

The carriage stopped in front of the jail, and after I had assisted my companions in dismounting, I went to advise the jailer of his distinguished afternoon visitors. “Miss Mary has brought a basket of food to the prisoner,” I told Mr. Presnell. “You may, of course, search the contents, but I assure you that it contains only bread and cheese, and, I believe, a slab of blackberry pie. I smelled it baking this morning at Belvidere.”

“Good wages for murder,” muttered Presnell, but I knew that he would not voice any complaints to the Erwin sisters, so I thanked him for allowing the visit and went back to fetch my sisters-in-law.

Miss Mary marched into the jail like a wolf on the fold and advanced toward the staircase with a fearless and deliberate tread, but Catherine shrank back at the doorway, and I saw that she had gone pale.

“Don’t be afraid,” I said, touching her elbow. “Frankie Silver is no older than your nephew Waightstill, and she is neither coarse nor mad. It will be all right. I shall go with you upstairs.”

Catherine whispered her thanks. “I thought . . .” she said. She took a deep breath and began again. “I came because I thought it might be a comfort to her to meet another woman who has lost her husband.”

I nodded, for I did not trust myself to speak. She is a kind woman, and she deserved more happiness in this life than Providence has seen fit to give her.

I indicated to Catherine that she should follow her elder sister up the narrow stairs, and that I would go last and carry the basket.

Mr. Presnell, who had gone up ahead of us, was waiting at the prisoner’s cell. He unlocked the door, which was an ordinary wooden door made of stout oak, with a square of bars set at eye level in the

middle of it, so that the prisoner could be observed by the guard. “Don’t be long in there,” he said softly to me as I went past him. “Lice.”

We peered in at the straw-covered interior, which contained only a straw-filled mattress on a camp bed and two oaken buckets: a clean one for water and a foul-smelling one for waste. The prisoner was standing at the barred window looking out at the village, or perhaps at the mountains beyond.

“She stands there hour after hour,” Presnell remarked. “Just staring out through the bars.”

“So should I if I were forced to stay in this place,” said Miss Mary, who had overheard him. “At least the air from the window is fresher than the stench in here, and there is something to occupy the mind in the ever-changing view.”

Presnell nodded. “Visitors for you, Mrs. Silver,” he said, adding as an aside, “I’ll be downstairs when you’re ready, Mr. Gaither.”

Frankie Silver turned to face us, and I saw that she had been weeping. Her eyes were red and swollen, but she dabbed at her cheek with the back of one hand and stood there submissively, wondering, no doubt, what further tribulations she was to endure.

I smiled, hoping to reassure her of the benign intentions of our visit. “Mrs. Silver, I am Burgess Gaither, the county clerk of Superior Court,” I said with careful politeness. “You may recall seeing me at your trial. My visit is not an official one, however. I am here as the escort to my wife’s sisters, who have come in Christian charity to visit you. May I present Miss Erwin and Mrs. Alfred Gaither? Ladies, this is Mrs. Charles Silver.”

She turned her gaze from me to the two Erwin sisters standing uncertainly in the doorway. Her eyes widened, and she nodded, more to indicate that she understood than to convey a greeting. Miss Mary, as always, took charge. She strode forward and inclined her head, as courteously as she would have greeted a gentlewoman in a church pew.

“Good day, Mrs. Silver. We have come to visit you,” she said briskly. “And to satisfy ourselves that you are well treated and in good health.”

Frankie Silver nodded shyly. Her hair was lank and hung about her shoulders, for she had no means of binding it up, lest she should use a hairpin to pick the lock. She was not wearing the blue court dress, but a plain brown one that looked ancient and none too clean. She put her hands to her hair, as if to smooth it into a semblance of presentability, and as she edged forward a bit toward her visitors, we heard a clattering sound from the floor.

Miss Mary peered down at the straw. “What was that noise?”

“Chain,” said the prisoner softly.

“I beg your pardon?”

Frankie Silver lifted the hem of her skirt a few inches from the straw, revealing thick links of chain. She wriggled one small white foot and the chain rattled.

I intervened with a discreet cough. “Mrs. Silver is in restraints. There is an iron shackle around her ankle, which is chained to a ring in the center of the floor.”

Miss Mary rounded on me with a look of outrage suggesting that I was personally responsible for this indignity. I think she was on the verge of banishing me from the room when the prisoner spoke up softly, “It’s all right. I’m used to it. You can’t go too far in this cell anyhow.”

Catherine left my side and went to put her hand on the prisoner’s arm. “We are very sorry to see a woman in such straits,” she said. “Are you well?”

Frankie Silver shrugged. “Reckon I’ll live ’til September,” she said. September is the time of the next sitting of Superior Court, at which time the judge will set the date for her hanging. She is unlettered, but she is not stupid,I thought. Her answer had a pleasing irony that spoke well of her wits.

“Is there anything we can do for you?”

She hesitated for a moment before she whispered, “Can I see my baby?”

They all turned to look at me, and I was forced to play the villain once again. “That is not within our power,” I said as gently as I could. “Your child is back up the mountain with her grandparents.”

“Am I ever going to see her again?”

“It is a long journey for a young child,” said Catherine gently. “I have a little daughter myself, and I would not care to have her travel so far in the summer heat.”

“Let us hope that someday you will go home to her,” said Miss Mary.

“She’ll forget me.”

“Your family will not allow that,” I said, although I had no idea if this was true or not. I did not want to torment the wretched woman with false hopes, but neither did I want to add to her misery with agonizing thoughts of home.

We stood there awkwardly, trying to think of something else to say to this poor creature. She could hardly know or care about politics or the fashions of the day, and her concerns for her home and family in the wilderness were equally foreign to ourselves.

At last Miss Mary remembered the basket on my arm. “We have brought you some food,” she said, motioning for me to set it down on the straw mattress. “Are you hungry?”

Frankie Silver looked away, and I fancied that her pride was struggling with her hunger. The mountain people are shy about accepting favors from anyone; they do not care to be beholden,as they call it. A curious attitude, I have always thought, whereas we gentlefolk of the lowlands take care that everyone in our circle of acquaintances should owe us a debt of gratitude for something, be it a dinner party given for a traveling gentleman, or a political appointment arranged for the son of a prominent neighbor. We take care to see that these loans of influence and hospitality are repaid in kind and issued again to a widening circle of acquaintances, for such is the currency of polite society. Frankie Silver would not understand the mechanics of a system of interlacing benevolences. But she was hungry.

“I’m afraid you will have to eat it now,” I told her. “Mr. Presnell will not want us to leave the basket or its contents here when we leave.”

“Please don’t worry about us,” said Catherine. “We have had our dinner.”

We stepped away from the camp bed to let her approach it, much as one might leave scraps for a stray dog who was shy of people. Mrs. Silver sat down on the straw mattress and began to look through the contents of the basket. “Thank you,” she said softly, looking away from us. “You’re right kind to do this.” She balanced a chicken leg between her fingers and began to tear chunks out of its brown flesh. We fidgeted in silence, not wanting to stare but finding little else to do.

“Do they feed you well in here?” asked Miss Mary.

The prisoner gulped down a morsel of chicken before she answered. “Tolerable,” she said. “A deal of corn mush, and sometimes a little meat in a stew. Hardly nothing fresh, though.” She sighed. “I dream about tomatoes and onions. I used to tend the tomato vines up home, and keep the deer out by pelting rocks at ’em, and pick the bugs off the tomato leaves, and I’d watch the little green bobs get bigger every day, until finally they’d get red and soft and you could eat them. I reckon I could eat a bushel of them now. Eat ’til I foundered and my sides swole up with gas, like an old horse in a corncrib.”

My sisters-in-law exchanged glances. This was not the sort of discourse they expected to have with a condemned prisoner, and since they had never been hungry in their lives, I am sure that they could find little to add to the conversation. I had been hungry, though, a few times after my father died, and I remembered well that feeling of emptiness that crowded all other thoughts out of one’s head.

“With me it was always the apple harvest,” I said, smiling. “Sometimes I couldn’t wait for them to get ripe, and I’d eat the green ones and be sick as a pup.”

She smiled and nodded, “Apples, too!” She looked like a child when the smile illuminated her features, and I thought for a brief moment that some mistake had been made. Surely this little girl was not the wicked murderess everyone talked about? She found the blackberry pie just then, and took a great bite out of the side of it, spilling purple juice down her chin and onto her breast. She wiped the stain away with the back of her hand and blushed. “I ask your pardon,” she said. “But it’s been a long time since I had pie.”

She ate for a few more moments in silence, and then, the edge taken off her hunger, she began to study her visitors. She swallowed a mouthful of food and said to Miss Mary, “That is one pretty dress, ma’am. I always wanted me a white dress with lace on’t. Reckon I oughtn’t to have one now.” She nodded toward Catherine, in her widow’s weeds. “Ought to wear black like you, ma’am.”

Miss Mary and I glanced at each other, neither of us daring to enter into a discussion on the proper mode of etiquette for a widow who has become one by her own hand, so to speak. Catherine said gently, “Did you have a white dress for your wedding?”

The prisoner shook her head. “We got married after harvest, Charlie and me. We waited ’til the circuit rider came to meeting so we could stand up before him and make it all legal. Mama cut up one of her old calico dresses from back in Anson County and made me a new frock for the wedding. And Charlie’s sisters Margaret and Rachel helped me weave leaves and daisies into a garland for my hair. It was over so quick, I hardly had time to think on it. They give a picnic supper for us, though, after. Folks brought beans, and yams, corn bread, and the last of the summer tomatoes. Silvers killed one of their cows for a barbecue. They roasted it on a spit over an open fire.”

“Who butchered it?”The words rose unbidden to my mind, and I said them before I was even aware of it.

Frankie Silver’s wide blue eyes turned on me with a careful stare. “I don’t believe I’ve eat that much before or since,” she said.

One blazing July day, when the air shimmered like creek water, distorting the shapes of the trees and hills in the distance, a letter arrived for me from Raleigh. It was addressed to B. S. Gaither, Clerk of Sup. Court, Burke County, Morganton,in the spidery copperplate script that is the hallmark of professional scribes and minions of the law. I knew exactly what it was, and I took a deep breath before slitting open the envelope, for it is a solemn thing to hold someone else’s life in your hands.

A few lines in black ink, nothing more. I stood there in the red dust of the road, reading those words, for, unseemly as it was, I could not wait to walk back to the courthouse to read the verdict contained in that missive.

It is considered by the Court that the judgment of the Superior Court of Law for the county of Burke be affirmed. And it is ordered that the said Superior Court proceed to judgment and sentence of death against the defendant, Francis Silver. On motion judgment is granted against Jackson Stuart and Isaiah Stuart, sureties to the appeal, for the cost of this court in the suit incurred.

Jno. L. Henderson Clerk of Supreme Court of North Carolina I folded the letter and put it back among the other letters that had come for me that day. There’s an end to it, I thought, but I could not help feeling saddened at this turn of events.

David Newland, the owner of the stagecoach line, stood nearby, watching me. Since he brings most of the news to Morganton, it is not unnatural that he should take an interest in it. “Bad tidings, Mr. Gaither?” he said, ambling over to join me.

“It is very bad indeed for Mrs. Silver,” I said. “Her appeal has been denied.”

He frowned. “So Mr. Woodfin was not able to persuade the justices to show her mercy?”

I hesitated, but I could see no way to evade the question, and I told myself that it was no business of mine anyhow. “According to the letter, Mr. Woodfin was not there.”

“But who presented her case to the justices, then? Mr. Wilson has not left town these past weeks.”

I could not meet his gaze, for I knew that I would see the outrage I myself felt mirrored in his eyes. “No one appeared on her behalf before the Supreme Court. The case was judged only on the merits of the written appeal.” A document of some three and a half hundred words, cribbed together by me in weariness and haste on the night following the trial. Her life had depended on this brief and colorless cluster of words, and it had failed her.

David Newland’s eyes widened. “She had no lawyer to plead her case in Raleigh? No one?”

I studied the wagon tracks in the red dust at my feet. “It’s a long way to Raleigh,” I murmured.

“Don’t I own the stagecoach, by God? I know how far it is, Mr. Gaither. I know exactly. And if I had been hired by that poor girl’s family to see her through her troubles, I would have kept my word, so help

me I would, even if Raleigh was halfway to hell and stank of brimstone.”

I could think of nothing to say that would not cast aspersions on my fellow attorneys, so I merely patted him on the arm and tried to summon a smile.

“Well, what must be done now?” asked Newland.

“Done?” I stared at him. “There is nothing to be done. The jury ruled, and the State Supreme Court has upheld their decision. It is all over now, except for the sentencing, which will come in the fall term of court, and then the execution that must follow.”

“We’ll see about that,” Newland said.

“I beg your pardon?”

He sighed. “You know, Mr. Gaither, when we had that trial back in March, tempers were high around here, and I don’t mind telling you that I was as eager as the rest to see that young woman hanged for her crime, but there has been talk around town lately. People are saying that Charlie Silver didn’t amount to much, and maybe he got what was coming to him. They’ve been mulling this case over, and now I hear folks saying that a decent woman doesn’t turn to violence but for one reason: to defend herself, or more likely her child. They had a little baby girl, as I recall.”

“A daughter,” I murmured. “Just over a year old when the murder took place.”

Newland nodded triumphantly. “There you are. That set me to thinking, all right. Why didn’t her lawyers admit she killed Charlie Silvers and then explain why?”

I sighed. It is difficult to explain the law to laymen. They seem to think that justice has to do with right and wrong, with absolutes. Perhaps when we stand before our Maker on Judgment Day, His court will be a just one, but those trials held on earth are not about what happened, but about what can be proven to have happened, or what twelve citizens can be persuaded to believe happened. Sometimes I think that the patron saint of lawyers ought to be Pontius Pilate, for surely he said it best: What is truth?

David Newland tugged at my sleeve. “You’re a lawyer, Mr. Gaither. Why didn’t they just tell us what happened instead of stonewalling with a plea of not guilty?”

I sighed. “It would have been a great gamble to have admitted her guilt in open court. There was no proof of self-defense, for there is only Mrs. Silver’s word for it, and she was not at liberty to testify. Her attorneys must have felt it was safer to make the state prove her guilt on the circumstantial evidence, rather than admit that she did it, with no means to show provocation.”

“Someone should have explained the situation to those judges in Raleigh.”

“It wouldn’t have mattered. The Supreme Court does not decide guilt or innocence. They rule on procedural matters. They cannot pardon as a governor can.”

“A governor?” Newland winced. “I had occasion to meet Mr. Montfort Stokes in Wilkesboro last April. The trial was still fresh in our minds, and when I discussed the matter with him, I was dead set against a pardon. I told him she would deserve what she got, and I said the rest of the county was pretty much to my way of thinking. I believe I misspoke, though, and now I must put things right. The governor can be appealed to, and if Montfort Stokes can be made to see reason, she might yet be saved.”

“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 poem

Paradise 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 your 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 was providential,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.”

And so she was gone, locked away for another season to pass the harvest, and then the winter, in that narrow cell, and I’m afraid I gave little thought to her over the next several weeks, for we are busy enough at harvesttime. I know that the ladies of Morganton continued to visit her, though, for I have heard Elizabeth speak of it among her sisters. They have made quite a pet out of the county’s most notorious criminal, and I found myself wondering if the ladies were basking in the melodrama of the doomed woman, or whether they envied her the courage and determination she showed in disposing of an unwanted husband. The men of the county thought she had perpetrated a great wickedness, but I am not sure that the fair sex shared our thoughts on the matter. Many a man in the tavern was uneasy enough when the talk turned round to Frankie Silver, and those who professed the loudest that she should be hanged without delay were the very men who seemed the least respectful of their own wives. I wondered sometimes if brutish husbands behaved a little better that year because of the terrible example of retribution that Mrs. Silver had set before us.

Several weeks after the dismissal of court, elections were held and John Boone took his place as the newly elected sheriff. I am sure he thought that the case of Frankie Silver would be over and done with before he took office, but it lingered still, harrowing him with the dreadful possibility of an execution in his term. Other prominent citizens of the county were still trying to persuade state officials to listen to reason. True to his word, Thomas Wilson wrote a letter to the governor on behalf of his client.

Statesville 19

November 1832

My dear Sir,

I hope you will pardon my troubling you with these few lines. The importance of the subject which I wish to mention will plead my justification. It is the condition of the unfortunate lady who is now confined in our jail at Morganton: Franky Silvers. She has been induced for some little time to believe a Pardon has been granted by your Excellency. This opinion has got abroad through a misunderstanding of Col. David Newland.

It is not necessary that I should multiply in words or reasons why I think she should win a pardon. Suffice it to say that I have no hesitation in saying that the community expect her Pardon and I believe generally wish it. Mr. Joseph Erwin was present at the trial to whom I refer you. He, I know, at one time thought it a case very doubtful. I saw David Newland at Wilkesboro & read the letter which Hugh M. Stokes wrote on that subject. I fully concur in sentiment with him as to the opinion of the community. There is certainly one, but few more, who think or wish her execution. It is believed by many that her Parents was very instrumental in the perpetration of that horrid deed. If so, shurely it is a powerful reason why the executive clemency should be extended to one of her age and condition.

I know, my dear sir, that you have often been reproached for extending the Ordinary Power vested in the Executive. You have nothing to fear from this approach: humanity is certainly one of the greatest attributes.

I do hope and trust, Sir, that if it is consistent with your duty and feelings toward a miserable wretch that you will grant her a Pardon if not already done, and forward same to me at Morganton. I did request our Sheriff Mr. Boone to speak to you on the subject. I know your engagements and fear that I have already wearied your patience.

Please accept the opinion of my highest esteem and regard for your welfare.

Th. W. Wilson Montfort Stokes, who was in his final days as North Carolina’s head of state, declined to reply.

In due course we found out why Judge Swain had not appeared to convene the fall term of Superior Court, and it proved to no one’s surprise that our judgment had been accurate: the gentleman had pressing business in grander places than our country backwater. David Lowry Swain was running for governor.

He had resigned his judgeship in order to spend the autumn months campaigning for the office among his influential friends in Raleigh, while his duties to justice in the mountain counties lay forgotten, overshadowed by his ambition. When the news became known, this turn of events was remarked upon by various community leaders in Morganton, with varying degrees of approval. The most charitable remarks I heard concerning Judge Swain’s candidacy were to the effect that perhaps it was a good thing, since Swain was a native of Asheville; perhaps, as a westerner himself, Swain could do some good for the oft-neglected mountain areas of North Carolina. Some said they would vote for him, and others were not so sure. Former sheriff Will Butler said that if Judge Swain’s attention to duty as a circuit judge was any indication of his concern for his homeland, we would do better to elect a monkey as governor, for we could do no worse. I saw a great deal of sense in the sheriff’s estimation of the situation, but I did not say so, for discretion is a lawyer’s greatest virtue, and besides, I thought there was very little chance that a man from our part of the state would win anyhow, since the political power is and always has been concentrated in the eastern part of the state.

David Swain did win, though. He was not chosen in the general election, which was held in November. At that time Andrew Jackson was reelected president, much to the consternation of a number of gentlemen in Burke County, and to Swain himself, who had bitterly opposed Jackson’s politics, but our local yeoman farmers were happy enough to hear of Old Hickory’s success, for he was a man of the people, and from these parts himself, and a few of them even vowed to make the long ride to Washington to attend the party for his inauguration in January. Then, in December, the politicians in Raleigh appointed David L. Swain to a special one-year term as governor of North Carolina, so in the end no one got to vote for him, but he became governor all the same, and in the main Will Butler was wrong about David Swain’s attitude toward the mountain counties. He was to prove a loyal friend to his home region, and he favored the advancement of the railroads into the western territories of the state, which would be a great boon to progress for the region, but he did not right all the wrongs in our portion of the state. Not by any means.

“Mrs. Silver is quite delighted to hear of Governor Swain’s election to office,” Elizabeth remarked at breakfast one morning early in the new year of 1833. “My sister Mary tells me that she wept for joy when she was told.”

I replied that I had not realized that Mrs. Silver took such an interest in politics, particularly since she was not likely to live long enough to enjoy the governor’s performance.

Elizabeth raised her eyebrows. “You are quite a bear this morning, Mr. Gaither,” she said. “Did last night’s rum punch not agree with you?”

“It is wearing out its welcome,” I admitted, “but that does not alter the fact that I am concerned about all the attention you ladies are paying Mrs. Silver. She is quite unused to the society to which you expose her in your visits, and I do not know what she makes of all of you. Still, she should be using this time wisely to prepare her soul for the Hereafter, and I think you ladies are at best a distraction from that purpose.”

Elizabeth laughed. “But she is not yet twenty! She has a long time to prepare for eternity.”

“She has until March, and perhaps six weeks thereafter, for preparations to be made, and the execution to be carried out. A sentencing hearing is merely a formality, Elizabeth. There will be no new evidence, no jury, no appeal. It is a matter of scheduling, nothing more. Her fate has already been decided.”

My wife favored me with a tolerant smile. “Her fate was decided before the new governor was appointed. Now, of course, everything has changed.”

“Nothing has changed.”

“But of course it has, dearest! David Swain of Asheville is now the governor of North Carolina. In short, he is one of us. And you must not forget that Mrs. Silver’s own attorney, Nicholas Woodfin, read law under Mr. Swain. A personal appeal can be made. That’s how these things are done.”

Elizabeth smiled at me, the gentle, condescending smile of an Erwin with four aces. Her grandfather Sharpe had been a member of the Continental Congress, and she counted generals, legislators, and wealthy planters in her bloodline. Who was I to tell her that she was mistaken? So I merely nodded and let it pass. I was thinking, though, that if Mistress Elizabeth Erwin Gaither took an ax to her husband, she could very well get herself pardoned by her father’s good friend the governor, but it was not so with Frankie Silver. All the influential supporters in the world could not make her a woman of substance. And

the sheltering wing of the Erwin ladies might not be enough to save her.