The Ballad of Frankie Silver

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 beenimprisoned 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.

Thomas Hughes, J.P. John C. Burgner, J.P.

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 redberry 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.