ABRAHAM THORNTON. TRIED FOR MURDER.

THIS case is remarkable, not only for the lamentable atrocity of the offence imputed to the unfortunate prisoner, but from the fact also of the brother of the deceased person having lodged an appeal, upon which the prisoner demanded “wager of battle,” the consequence of which was the repeal of the old law, by which the wager was allowed in former ages, and which had already grown into disuse, although it still remained in existence.

Thornton was a well-made young man, the son of a respectable builder, and was by trade a bricklayer. He was indicted at the Warwick assizes in August 1817, for the murder of Mary Ashford, a lovely and interesting girl, whose character was perfectly unsullied up to the time at which she was most barbarously ravished and murdered by the prisoner.

From the evidence adduced, it appeared that the poor girl went to a dance at Tyburn, a few miles from Birmingham, on the evening of the 26th of May 1817, where she met the prisoner, who professed to admire her figure and general appearance, and who was heard to say, “I have been intimate, and I will have connexion with her, though it cost me my life.” He danced with her, and accompanied her from the room, at about three o’clock in the morning. At four o’clock she called at a friend’s at a place called Erdington, and the offence alleged against the prisoner was committed immediately afterwards. The circumstances proved in evidence, were that the footsteps of a man and woman were traced from the path through a harrowed field, through which her way lay home to Langley. The marks were at first regular, but afterwards exhibited proofs of the persons whose footfalls they represented, running and struggling; and at length they led to a spot where a distinct impression of a human figure and a large quantity of coagulated blood were discovered, and on this spot the marks of a man’s knees and toes were also distinguishable. From thence the man’s footfalls only were seen, and accompanying it blood marks were distinctly traced for a considerable space towards a pit; and it appeared plainly as if a man had walked along the footway carrying a body, from which the blood dropped. At the edge of the pit, the shoes, bonnet, and bundle of the deceased were found; but only one footstep could be seen there, and that was a man’s. It was deeply impressed, and seemed to be that of a man who thrust one foot forward to heave something into the pit; and the body of the deceased was discovered lying at the bottom. There were marks of laceration upon the body; and both her arms had the marks of hands, as if they had pressed them with violence to the ground.

By his own admission Thornton was with her at four o’clock, and the marks of the man’s shoes in the running corresponded exactly to his. By his own admission, also, he was intimate with her; and this admission was made not before the magistrate, nor till the evident proofs were discovered on his clothes: her clothes, too, afforded most powerful evidence. At four in the morning she called at a friend’s, Hannah Cox, and changed her dancing-dress for that in which she had gone from Birmingham.

The clothes she put on there, and which she had on at the time of her death, were all over blood and dirt.

The case, therefore, appeared to be, that Thornton had paid attention to her during the night; shown, perhaps, those attentions which she might naturally have been pleased with; and afterwards waited for her on her return from Erdington, and after forcibly violating her, threw her body into the pit.

The prisoner declined saying anything in his defence, stating that he would leave everything to his counsel, who called several witnesses to the fact of his having returned home at an hour which rendered it very improbable, if not impossible, that he could have committed the murder, and have traversed the distance from the fatal spot to the places in which he was seen, in the very short time that appeared to have elapsed: but it was acknowledged that there was considerable variation in the different village-clocks; and the case was involved in so much difficulty, from the nature of the defence, although the case for the prosecution appeared unanswerable, that the judge’s charge to the jury occupied no less than two hours. “It were better,” he said in conclusion, “that the murderer, with all the weight of his crime upon his head, should escape punishment, than that another person should suffer death without being guilty;” and this consideration weighed so powerfully with the jury, that, to the surprise of all who had taken an interest in this awful case, they returned a verdict of Not Guilty, which the prisoner received with a smile of silent approbation, and an unsuccessful attempt at concealment of the violent apprehensions as to his fate by which he had been inwardly agitated.

He was then arraigned pro forma, for the rape; but the counsel for the prosecution declined offering evidence on this indictment, and he was accordingly discharged.

Thus ended, for the present, the proceedings on this most brutal and ferocious violation and murder; but the public at large, and more particularly the inhabitants of the neighbourhood in which it had been committed, were far from considering Thornton innocent, and subscriptions to defray the expense of a new prosecution were entered into.

The circumstances of the case having been investigated by the secretary of state, he granted his warrant to the sheriff of Warwick to take the defendant into custody on an appeal of murder, to be prosecuted by William Ashford, the brother and heir-at-law of the deceased. He was in consequence lodged in Warwick jail, and from thence he was subsequently removed by a writ of habeas corpus to London, the proceedings on the appeal being had in the Court of King’s Bench, in Westminster Hall. On the 6th of November, the appellant, attended by four counsel, appeared in court, when the proceedings were adjourned to the 17th, by the desire of the prisoner’s counsel; and on that day the prisoner demanded trial by wager of battle. The revival of this obsolete law gave rise to much argument on both sides; and it was not until the 16th of April 1818, that the decision of the Court was given upon the question. The learned judges gave their opinions seriatim, and the substance of the judgment was, that the law must be administered as it stood, and that therefore the prisoner was entitled to claim trial by battle; but the Court added that the trial should be granted only “in case the appellant should show cause why the defendant should not depart without day.” On the 20th the arguments were resumed by the appellant’s counsel; but the defendant was ordered to “be discharged from the appeal, and to be allowed to go forth without bail.”

Though the rigid application of the letter of the law thus, a second time, saved this unfortunate man from punishment, nothing could remove the conviction of his guilt from the public mind. Shunned by all who knew him, his very name became an object of terror, and he soon afterwards attempted to proceed to America; but the sailors of the vessel in which he was about to embark refused to go to sea with a character on board who, according to their fancy, was likely to produce so much ill-luck to the voyage; and he was compelled to conceal himself until another opportunity was afforded him to make good his escape.

The “trial by battle,” which in this case was so remarkably claimed, may be thus described:—

When the privilege of trial by battle was claimed by the appellee, the judges had to consider whether, under the circumstances, he was entitled to the exercise of such privilege; and his claim thereto having been admitted, they fixed a day and place for the combat, which was conducted with the following solemnities:—

A piece of ground was set out, of sixty feet square, enclosed with lists, and on one side was a court erected for the judges of the Court of Common Pleas, who attended there in their scarlet robes; and also a bar for the learned serjeants at law. When the court was assembled, proclamation was made for the parties, who were accordingly introduced in the area by the proper officers, each armed with a baton, or staff of an ell long, tipped with horn, and bearing a four-cornered leather target for defence. The combatants were bare-headed and bare-footed, the appellee with his head shaved, the appellant as usual, but both dressed alike. The appellee pleaded Not Guilty, and threw down his glove, and declared he would defend the same by his body; the appellant took up the glove, and replied that he was ready to make good the appeal body for body. And thereupon the appellee, taking the Bible in his right hand, and in his left the right hand of his antagonist, swore to this effect:—

“Hear this, O man, whom I hold by the hand, who callest thyself [John], by the name of baptism, that I, who call myself [Thomas], by the name of baptism, did not feloniously murder thy father [William], by name, nor am anyway guilty of the said felony. So help me God, and the saints; and this I will defend against thee by my body, as this court shall award.”

To which the appellant replied, holding the Bible and his antagonist’s hand, in the same manner as the other:—

“Hear this, O man, whom I hold by the hand, who callest thyself [Thomas], by the name of baptism, that thou art perjured, because that thou feloniously didst murder my father [William], by name. So help me God, and the saints; and this I will prove against thee by my body, as this Court shall award.”

Next, an oath against sorcery and enchantment was taken by both the combatants in this or a similar form. “Hear this, ye justices, that I have this day neither ate, drank, nor have upon me either bone, stone, or grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the devil exalted. So help me God and his saints.”

The battle was thus begun, and the combatants were bound to fight till the stars appeared in the evening.

If the appellee were so far vanquished that he could not or would not fight any longer, he was adjudged to be hanged immediately: and then, as well as if he were killed in battle, Providence was deemed to have determined in favour of the truth, and his blood was declared attainted. But if he killed the appellant, or could maintain the fight from sun-rising till the stars appeared in the evening, he was acquitted. So also, if the appellant became recreant, and pronounced the word craven, he lost his liberam legem, and became infamous; and the appellee recovered his damages and was for ever quit, not only of the appeal, but of all indictments likewise of the same offence. There were cases where the appellant might counterplead, and oust the appellee from his trial by battle: these were vehement presumption or sufficient proof that the appeal was true: or where the appellant was under fourteen, or above sixty years of age, or was a woman or a priest, or a peer, or, lastly, a citizen of London, because the peaceful habits of the citizens were supposed to unfit them for battle.

It is almost needless to add, that this remnant of barbarity has now ceased to exist, an act of parliament, the introduction of which was attributable to the above case, having removed it from the pages of the lawbooks by which our courts are governed.