were brother attorneys in the same district, and our paths were bound to cross both professionally and socially, for he, too, was a Whig in politics. He had prospered in the years since I first knew him. He is a shirttail relative now, for he married Miss Eliza Grace McDowell of Quaker Meadows, my wife’s cousin, and though they make their home in Asheville, we see them from time to time.
Woodfin served in the State Senate the year after I left it, but his true renown was as an eloquent trial attorney. By tacit agreement, we did not speak of his first capital case for many years thereafter. I think he was ashamed of his failure to secure a pardon for his client, and I think he was genuinely grieved and blamed himself for her tragedy. Since then, I have heard many of our fellow attorneys remark on the curious fact that Nicholas Woodfin refused to represent clients who were on trial for their lives. I thought I knew the reason why.
It was nearly twenty years after the case of Frankie Silver that we met again under circumstances that called to mind the events surrounding our first encounter.
In November 1851, William Waightstill Avery, a prominent fellow attorney and my own nephew by marriage, was charged with murder.
Waightstill was a student in college at the time of the trial of Frankie Silver, which made him nine years
younger than I, and I had always considered myself an older relative rather than a comrade. He was the son of my wife’s eldest sister Harriet, who had married Isaac Thomas Avery of Swan Ponds. Young Waightstill, who was named after his paternal grandfather, North Carolina’s first attorney general, was a clever and hardworking fellow who had graduated as valedictorian of his class at the state university in Chapel Hill. He went on to read law with Judge William Gaston, qualifying to practice in 1839, the year that I was elected to represent Burke County in the North Carolina State Senate. In 1851, at the time of his trial, Waightstill had just completed a second term representing Burke County in the North Carolina House of Commons. He was thirty-five years old.
The tragedy that led to his being charged with murder began eighteen days earlier, when Waightstill Avery was arguing a civil case in the McDowell County Superior Court. He was representing a McDowell County man named Ephraim Greenlee, a former client of attorney Samuel Fleming of Marion. Greenlee was accusing Fleming of fraud in connection with some disputed property, and during the course of arguing the case, Waightstill Avery blamed Sam Fleming for the disappearance of a will that was relevant evidence in the matter. I am not sure whether he was arguing that Fleming was careless, incompetent, or deliberately concealing the pertinent documents for his own gain, but one interpretation is scarcely better than the other when a lawyer’s reputation is at stake.
Fleming took exception to this slur on his skills as an attorney, for, of course, he denied any blame in the matter. Fleming was a tall, red-faced fellow with a thatch of auburn curls and a fiery temper to match. He towered over young Waightstill Avery, quivering with indignation and shouting that he’d have satisfaction for this insult to his honor.
Avery took this for the usual legal bravado that one hears bandied about in the law courts, but this time he had misjudged his opponent, with fatal consequences. When court was adjourned, Avery gathered up his papers and left the courthouse, but when he got outside, he saw that Samuel Fleming was waiting in the street for him, shouting abuse and brandishing a rawhide horsewhip in a threatening manner, while the north wind whipped his cape about him, making him look like an avenging devil. There’s those who would say that’s exactly what he was. Sam Fleming was not rich in friendships.
Now my nephew Avery was a small man, and he had perhaps the more pride and dignity because of it, but he was by no means a coward, nor was he an undistinguished citizen of the Carolina frontier. He had no reason to fear a fellow attorney, for although I say that he was a citizen of the “Carolina frontier,” things had changed a good deal in the two decades since the trial of Frankie Silver. True, there were as yet no railroads in the mountains, but the roads were better now. The population continued to grow, and the cities were