him, he fired the weapon point-blank at Samuel Fleming’s heart.
He was dead before anyone of us reached him, and Waightstill made no move to flee the consequences of his action. He stood there calmly, handed the pistol over to the bailiff, and said that his honor was satisfied now, and that he was willing to be tried for his actions, because Sam Fleming needed killing. And when the facts were put forth in the presence of a jury, Waightstill thought that justice would be done. They led him away, and took him to the jail for form’s sake, but he was out on bond before nightfall. I joined the family council at Belvidere to plan the strategy of my nephew’s defense.
The trial was held in November 1851, only a few weeks after the incident. Waightstill would not have to languish in jail for months awaiting judgment as poor Frankie Silver had done. He was neither poor nor friendless. When the day came for William Waightstill Avery to appear before the court in Morganton to answer for the death of Samuel Fleming, he was represented by four members of counsel, all gentlemen that he could count as friends, and all distinguished attorneys, if I may say that without boasting, for I was
one of their number.
So was Nicholas Woodfin. I knew him better now than I did all those years ago, when, as a newly fledged attorney, he had defended Frankie Silver. Now he was counted one of us, a kinsman of sorts, for he had been married to Eliza Grace some dozen years now.
The two other members of counsel were even more prominent men in the state, and perhaps they were chosen for their eminence more than for their legal skills. Mr. Tod R. Caldwell and General John Gray Bynum of Rutherfordton were both lawyers, but both had gained distinction in the political sphere rather than in the courtroom.
Tod Caldwell was an Irishman whose grandfather had been exiled from the old country in the rebellion of 1798. His father had been a shopkeeper in Morganton, and young Tod, who was a year or two younger than my nephew Waightstill Avery, had clerked in his father’s establishment before his own talent and ambition had led him off to study at the University of North Carolina. He simultaneously read law under the tutelage of David Lowry Swain, and became the first person ever to graduate from the university and receive his license to practice law at one and the same time. Then he went into law practice in Morganton, entering politics about ten years ago, when the county elected him to serve in the North Carolina House of Commons with our other county delegates, Mr. O. J. Neal and William Waightstill Avery. The two young men were friends and adversaries throughout their lives, for a town like Morganton is hardly big enough to cage two such lions. I have often thought that one of them will end up being governor. I had not thought that the other would end up on the scaffold.
“He is to have four lawyers?” I said to Woodfin when we all assembled a few days before the trial.
Nicholas Woodfin smiled. “There is no one so cautious—or so rightfully afraid—as an attorney who must face trial by jury.”
“I suppose it is mainly for show,” I said. “To demonstrate to the jury that the most prominent citizens of western North Carolina stand behind Waightstill in his hour of trouble.”
“Mostly that,” Woodfin agreed. “I believe I am to do most of the speechmaking, since I have the most trial experience.”
“You have made quite a name for yourself in the courtroom since we first met,” I told him. “We are all glad that you are making an exception to your rule about not appearing in capital cases.”
Woodfin nodded. “Waightstill is family as well as a friend and colleague,” he reminded me. “Besides, I do not really consider this a capital case.”
“Waightstill shot the fellow in open court. I saw it. It was no duel. I do not think that Fleming even saw the weapon. But, of course, as one of Waightstill’s attorneys, I cannot testify.”
Nicholas Woodfin smiled. “Nor can Waightstill, since he is the defendant, but from what I hear, there were witnesses aplenty to the horsewhipping incident in Marion. I think we can show a jury that Sam Fleming needed killing.”
“But why not challenge the fellow to a duel?” I asked. “Lord knows there is family precedent for that. Waightstill’s grandfather and