The Ballad of Frankie Silver (10 page)

“What can I do for you?” I asked politely, ignoring the intruder’s belligerent expression.

The scowling man approached my desk. “They’ve got my family locked up in the jail here, and you can tell me what to do about it.”

“Oh,” I said, for now I realized who my visitor must be.

This was Frankie Silver’s father, returned from his long hunt in Kentucky to find his wife and children imprisoned. I should have considered the shock and anguish of the poor fellow, but in truth my first thought was to wonder uneasily: was he armed, and what did he intend to do about his family’s imprisonment?

I looked more closely at the man, and I decided that his anger was born of fear for his family. He was unkempt, as most of the trappers are, with a grizzled beard and hair that had seen neither comb nor soap in a good while, but he was sober, fine-featured, and well-spoken enough. From the look of him I thought that he might have started out life in circumstances more propitious than a log cabin in the wildwood. I felt a sudden pang of sympathy for the poor old fellow. The life of a backcountry farmer and trapper is a harsh one, uncertain at the best of times, and the man before me seemed aged before his time. What a blow—to come back from the cold and pitiless frontier to find that your wife and children are in deepest peril and accused of the worst of crimes. What man wouldn’t shout his way into a courthouse on such provocation? He was a stranger here, and he was by no means certain of his welcome.

“I am the clerk of the Burke County Superior Court,” I told him, extending my hand with a smile of welcome. “My name is Burgess Gaither, sir. I know who you must be.”

He nodded. I could see the weariness etched in the lines on his face. He must have ridden all night to get here. “Isaiah Stewart,” he said. “I got back last night. Me and my oldest boy Jackson. We was hunting over to Kentucky way. The Howells told us my family had been taken. Have you seen them?”

“Only for a few moments when they first reached the town,” I told him. “They waited here in this courtroom until the jailer could be found. They are all well, though. I would have heard otherwise.”

Isaiah Stewart sat down in the cane chair beside my desk. His boots made a puddle on my polished floor, but he was too anxious in his mind to notice such a thing. “What must I do?” he asked me. His look was as guileless as a child’s, and again I felt a twinge of pity for this poor bewildered fellow. I had no doubt that Stewart would be fearless against an attacking bear, or in defending his pelts against a band of Shawnee, but here in the county town, with all the intricacies of the law in a maze before him, he was powerless, shackled by his own ignorance and his rusticity.

“You know the circumstances of their arrest?” I asked, hoping dearly that it would not fall to me to break the news to him.

“I heard. Charlie Silver’s been kilt.”

“The trial will take place in March,” I told him gently. “You must secure an attorney to defend your family, for they are charged with the crime.”

“March! That’s two months away. Do they have to stay in jail ’til then?”

I hesitated. In the wake of such a gruesome murder, no bail would be granted. I was sure of that, but I hated to give such bleak news to this careworn man.

“I fear for their safety, sir,” he said.

I was about to protest that Dr. Tate was an excellent physician who lived in the very shadow of the courthouse. He attended prisoners at the county’s expense if needed. Before I could blurt out this information, I suddenly took his meaning. He was concerned not that his family might succumb to disease during their confinement, but that their lives might be threatened by vigilantes in the town. I had heard wild talk in the taverns about doing away with the murdering savages in Butler’s jail; perhaps Isaiah Stewart knew of such sentiments from his neighbors up-county, or else he had met with such a harsh welcome upon his arrival in Morganton.

“They are drunken louts who make such threats,” I told him. “No one here would harm helpless women and a young boy in custody, no matter what they are thought to have done.”

He looked unconvinced by my speech, and indeed I had spoken more out of hope than conviction. “I must look after my family,” he said at last.

“Did they tell you what happened to Charlie Silver?”

“I heard from them that found him.”

I had the feeling that Isaiah Stewart had more to say on the subject of his son-in-law, but nothing more was forthcoming. He seemed impassive for one whose kinsman had met such a brutal end. “It was a shocking crime,” I told him, for I was not sure that a backwoodsman would understand the degree of horror that had been generated here in Morganton by the news of the murder.

He nodded. “It sounds so.”

“The poor young man was hacked to pieces, Mr. Stewart! They have not yet recovered all of him for a Christian burial. People are enraged.”

“They are quick to judge without knowing the facts of the case,” said Stewart.

“The fact of the butchered corpse speaks for itself,” I said. “I must tell you that there is very little sympathy for those who have committed this crime. The killing was brutal, and the attempt at concealment was pitiless, some say cowardly.”

He winced at that, but he gave me no argument. “Is there not some way to free them?” he asked me.

I considered the matter. “Would it be wise, Mr. Stewart? Think about what you are suggesting, regardless of the guilt or innocence of the prisoners. Feelings are running high concerning this case. Even if you succeeded in securing their release on bail, it is possible that a mob would overtake you as you attempted to leave town, or perhaps those nearer to home—the family of the victim—would seek a private vengeance for their wrongs.”

“We can take care of ourselves,” said Stewart. “My son Jack is twenty-four, and married to a Howell girl. I reckon the Howells will stand with us.”

“You could cause the deaths of the very persons you are attempting to save.”

Stewart grew impatient. “My wife and my children have been locked away on the word of the Silvers. I want somebody here—somebody who isn’t beholden to the damned Silvers—to see if there’s any cause to accuse my family of this crime. I’m not saying it wasn’t a terrible thing. I liked young Charlie well enough. But besides the Silvers’ say-so, I want to know on what proof the Stewarts stand accused.”

Fair enough, I thought. Perhaps the family of the murdered man had fixed upon a handy scapegoat to assuage their grief and to settle old scores in the bargain. From what Constable Baker had told us, I did not think it likely, but Isaiah Stewart was correct: his family was entitled to face their accusers.

“If you are set on securing their release,” I told him, “and if you are correct about their being unjustly arrested, there is one possible way to free them. You could seek out the magistrates and request a hearing of habeas corpus.”

Isaiah Stewart blinked uncomprehendingly. “Can it be done quickly?” Another anxious thought darkened his face. “Will it cost much?” he asked. “I reckon I can raise some cash, but—”

I shook my head. “You must look ahead to the trial in March, for then you will have greater lawyers’ fees to pay, but this hearing is a simple matter before the magistrates. Its purpose is to see if there is enough evidence to charge the prisoners with murder. You must request this hearing, though.”

“How can I do that?”

“You must find the magistrates—Mr. Hughes or Mr. Burgner, our justices of the peace—and you must formally request the hearing for a legal reason. I will tell you exactly what you must say. The phrases will be strange to you, but you must get them off by heart. Can you manage that?”

“Yes, sir.”

“All right. I could write it down for you.…”

“Memory will serve.”

“Find Thomas Hughes or John C. Burgner—either will do—and say that you wish to take an oath that the prisoners Barbara Stewart, Blackston Stewart, and Frankie Silver have been
imprisoned without the legal forms of trial and without the parties having it in their power to confront their accusers before any legal tribunal
.”

He made me say it twice more, and then he said, “They’ll let my family go, then?”

“No. The magistrates will then order a hearing with witnesses to testify, just like a trial. Then the magistrates will determine if there is enough evidence to keep the accused persons in jail. Or they may release them on bond. Do you understand?”

“Well enough,” said Stewart. “Say those legal words again.”

I drilled him on the form of the request until I was sure that he had committed the phrases to memory. I then gave him directions to John Burgner’s house and wished him well.

Isaiah Stewart thanked me gravely, and before he turned to go, he said, “Are you a lawyer, sir?”

“I am,” I said, “but I may not represent you in this matter. As the clerk of Superior Court, my part in the case is already assigned. I will be present at the trial as the record keeper, and to advise the members of counsel on points of law. Take heart, though! There are half a dozen qualified attorneys in this town, with much more trial experience than I have. I am sure you will find a good one to take the case. The habeas corpus matter can be handled by any lawyer worthy of the name.”

He nodded. “I’ll see about that hearing now.”

NORTH CAROLINA—BURKE COUNTY

Whereas Isaiah Stewart hath complained to us, John C. Burgner and Thomas Hughes, two of the Acting Justices of the Peace in and for the county of Burke aforesaid, that Barbara Stuart, Frankey Silver, and Blackstone Stuart have been suspected of having committed a murder on the body of one Charles Silver, and whereas it has been made to appear on oath of the said Isaiah Stuart that the said defendants have been committed to the common Jail of the County without the parties having it in their power of confronting their accusers before any legal tribunal:

These are therefore to command you, the Sheriff of Burke County or any other lawful officer of said county, to arrest the bodies of Barbary Stuart, Frankey Silver, and Blackston Stuart, and them safely keep so that you have them before us at Morgan within the time prescribed by law, then and there to answer the charge and to be further delt with as the law directs. Herein fail not at your peril. Given from under our hands and seal, this 13th day of January,
A.D.
1832.

I returned the document to Will Butler. “Poor Tom Hughes. His command of the language leaves much to be desired, but he’s a good man for all that.”

Butler tapped the writ. “I see your hand in this, my learned friend.”

“Surely I spell better than that, Will,” I said, smiling.

“Isaiah Stewart doth make oath that his family has been denied the right to face their accusers!
Those are fine ten-shilling words to come out of the mouth of a backwoodsman! Why, you could engrave on the head of a pin all that fellow knows about the law. I’m thinking that someone put him up to it.”

“Some good Samaritan, perhaps,” I said. “Stewart is within his rights in this. Surely you don’t object to a hearing.”

I watched my breath make mist in the air between us. Will Butler had waylaid me on the street near the Presbyterian church. I had been admiring a churchyard snow scene of red-berry bushes flanked by snow-laden boughs, and thinking that even the dead had their seasonal finery, when Butler hailed me to discuss his newfound fame as the keeper of the most notorious murderess since the Lady Macbeth.

Will Butler had been considering my question. “Object to a hearing? Not I. Tongues are already wagging about this case. Perhaps a dose of the facts would put the matter to rest. Besides, the magistrates may grant bail to some of the prisoners anyhow. The boy is mighty young. I suppose I wouldn’t mind having fewer prisoners to guard until the March term of court.”

“Are you worried that someone may try to harm the Stewarts before then? I have heard talk.”

“We are vigilant,” said Butler.

“I have spoken with one of your charges, but only glimpsed the others. What are the prisoners like?”

“Quite ordinary.” Butler shrugged. “Backwoods people, of course. They are not the leering savages that the taverners make them out to be. Mrs. Stewart is a small woman, a faded version of her daughter. The son is a sullen fellow—not an uncommon condition for lads of sixteen, though, and hardly an indication of guilt. They are peaceable enough in their quarters. Young Mrs. Silver weeps now and again, and she often asks about her baby. The others sleep or pray or talk in low voices as the mood takes them. The jailer’s wife is quite taken with them, I hear. She will have had worse guests to contend with, I’ll warrant.”

“Have they said anything about the death of Charlie Silver?”

“Nothing for my ears. Perhaps the hearing will enlighten us. Will you be there, Burgess?”

“In my official capacity, no. But I am as curious as the next man. As a private citizen, nothing could keep me away.”

*   *   *

The court system of a frontier town is a wonderful thing. Morganton, on the very fringe of civilization, has little in the way of public entertainment. We have a fair at harvesttime, but indeed the highlight of the year is the annual Fourth of July celebration staged by the Morganton Agricultural Society, with its stirring patriotic speeches, a spirited reading of the Declaration of Independence, and the ragtail parade of surviving veterans of the Revolution through the streets of the town—a smaller procession each year, as time thins their ranks. Among the gentlefolk, there are supper parties and balls, with music and dancing, but week in and week out, there is little but hard work to occupy the mind of the common man.

Court is our theatre.

There may the most humble citizen view the dramas of their neighbors, whether it be the small comedies of a squabble over a stray calf or a fence line, or the life-and-death tragedy that will end at the gallows. And not a penny of admission is charged to view this spectacle; indeed it is our right as citizens to view the judicial process at work. The lawyers are the principal actors, and they are accorded respect and an increase in business in proportion to their degree of showmanship. Since it was January—midway between the harvest festival and the Fourth of July revels, and a time of idleness for farmers—I knew that the little courtroom would be packed to the rafters with spectators. There was scarcely a soul in Morganton who had not heard of the dreadful fate of Charlie Silver, and those who could walk would not miss a single performance of the legal process that brought retribution to his killers. It was reckoned to be a three-act play spread out over the next several months: hearing, trial, and hanging. The audience for each would be prodigious.