execute everyone who steals or commits some lesser crime, even though the law permits such summary justice. First offenders, especially people who are otherwise upstanding citizens except for this one lapse, are often shown mercy by the court, though when I have witnessed the administering of the alternative and heard the screams, I have often wondered if it is indeed mercy that is meted out.
To distinguish between irredeemable sinners and unfortunate transgressors, therefore, capital crimes are divided into two classes: the unpardonable acts in which the offender was denied benefit of clergy and was executed for his crime, and the other, so-called clergyable offenses, in which the convicted prisoner might plead “benefit of clergy” and thus escape the death penalty by accepting the lesser punishment of being branded on the brawn of the left thumb. The term clergyablerefers to the origin of the practice. In medieval England, the clergy could claim exemption from the punishments of secular courts. Later this leniency was extended to anyone who could read, permitting the offender to escape the death penalty for the lesser punishment of branding. More recently, “benefit of clergy” was extended to citizens irrespective of their literacy, and more depending upon the nature of the offense. One cannot claim “benefit of clergy” twice, however. The law is not given to the eternal mercy of heaven.
When a court had accepted the prisoner’s plea of benefit of clergy, waiving the execution in favor of the lesser punishment, the sheriff’s duty was to hold the red-hot branding iron to the thumb of the criminal for as long as it took the man to cry out “God save the State” three times. On this occasion, the unrepentant felon, tied to a post and writhing in his agony, screamed out “God save the State!” twice, and then sobbed and gasped, “God damn Sam Tate!”
Sheriff Tate carefully removed the branding iron from the poor man’s thumb and began the procedure all over again, making sure that the requisite phrase was said correctly three times, as prescribed by law. No, Sam Tate was not an angel of mercy, but he was faithful to the letter of the law, and he knew the North Carolina statutes as well as anyone.
“Well,” I said, “whatever Sam Tate’s biases are toward the people of Morganton proper, if indeed he has any, he is sure to be a stranger to all the principals in the Silver case, because they all hail from the back of beyond. Therefore the proper objectivity will be preserved. Sam knows the law. I know of nothing fairer than that.”
“I suppose it’s a foregone conclusion anyway, isn’t it?” she asked as I turned to leave.
“Pretty nearly,” I said. “All her hopes must rest on the trial itself. Perhaps her lawyer can move the jury with his eloquence. Failing that, she is lost.”
The grand jury under Sam Tate’s able direction considered the case against Frankie Silver, her mother Barbara Stewart, and her younger brother Blackston. The facts were presented, and the witnesses heard. When the grand jury retired to begin its deliberations, they argued about what should be done.
One of the more prominent jurors, George Corpening, whose brother David is our state legislator, said: “I say we indict the lot of them! They’re all in this together. Anyone can see that.”
Other voices chimed in to agree with Corpening.
They finally stopped chattering and noticed that the grand jury chairman and former sheriff sat conspicuously silent. After a moment’s silence, Rucket Stanley said, “What do you think, Mr. Tate?”
Sam Tate considered the matter. “Well, boys,” he said, “it’s like this. Trials are tricky things. You can indict ever who you want to, but that doesn’t guarantee that you’ll get a conviction when the trial is over and done with. I’ve seen a lot of cases go to court in my time, and I’ll tell you what’s the truth: indicting all three of these suspects would make me uneasy. Yes, sir, it would.”
“Why is that, Sheriff Tate?”
“Because it suggests that we don’t know who to blame, and that we’re arresting everybody just to make sure we get the guilty party. People don’t like that. Jurors are so contrary, they might end up feeling sorry for the Stewarts and letting every one of them go. I say we ought to pick one of them—the most obvious one—and let that person take all the blame.”
George Corpening was scowling. “But what about the other two?”
“Do you see any proof that they were involved?” The sheriff’s eyes narrowed.