ABRAHAM THORNTON
Acquitted on a Charge of murdering a Girl, and on being rearrested claimed Trial by Battle, April, 1818
THE particulars which we are about to record of the violation and murder of the virtuous and beautiful Mary Ashford, -- whose melancholy fate even libertinism itself must deplore, - reached the remotest corners of the kingdoms with almost electric force, and excited feelings of melancholy and regret for the fate of the unfortunate girl, and of indignation and disgust at the crimes of the fiendish destroyer of her virtue and her life, which still exist with unabated ardour, and will long continue to thaw tears of deep affliction wherever her melancholy tale shall be told.
Mary Ashford was a girl of the most fascinating manners, of lovely person, and in the bloom and prime of life; she was only twenty years of age, at the period of this horrid transaction, and up to that time had borne the most irreproachable character; she was of poor but honest parents; her father was a gardener at Erdington, near Birmingham, and lived below the Cross-keys. She had been dwelling for some length of time, under the protection of her uncle, Mr Coleman, a small farmer, residing a short distance from Erdington, at a place called Langley-heath, situate in the county of Warwick. Mary was well known and highly respected in Erdington, and in the very neighbourhood of the spot where she fell a victim to the brutal lust of a detestable ravisher, and the murderous grasp of a ferocious assassin.
The human form was never moulded into finer symmetry than that which distinguished the person of Mary Ashford. She was five feet four inches high, remarkably lively, of a sweet and amiable disposition, mild and unassuming in her manners, and strictly virtuous in her principles and conduct; it was, however, proved, by an eminent surgeon, who examined the body soon after it was taken out of the pit in which she was found murdered, that some man had had sexual intercourse with her, but that immediately previous thereto, she had been a pure virgin.
This unfortunate maid, went on the 26th of May, 1817, from Mr Coleman, her uncle's, at Langley, where she lived, to the market at Birmingham. On her way, she called upon her intimate friend Hannah Cox, at Erdington, and arranged that she should be back early in the evening, to go to a dance at Tyburn, which usually took place in a public-house there, at the conclusion of an annual feast, of a friendly society. She was not in the habit of attending dances, but she did attend at this dance.
Abraham Thornton (the prisoner) was there, and was so captivated with the figure and general appearance of Mary Ashford, that he inquired after her friends, and being informed who they were, he was heard to say, 'I have been intimate with her sister, and will with her, or die by it;' and this speech was proved on the trial to have been privately uttered by him to two of his acquaintances. The first part of this sentence appeared, however, to. be nothing more than the boast of libertinism -- for it was proved by strict inquiry, that his insinuations respecting Mary Ashford's sister were wholly groundless. He danced with the ill-fated girl, paid her the greatest attention, accompanied her from the dance homewards, and was afterwards seen with her at a stile, on the side of the high road, at three-quarters past two o'clock in the morning. Before four o'clock she called on her friend Cox, at Erdington, and was perfectly calm, in good health and spirits, and composure of mind: she left her friend about four o'clock.
On her leaving her friend Cox at Erdington, at this time, between four and five o'clock in the morning, of the 27th May, 1817, in her way across the fields to Langley, about a mile distant from Erdington, the fatal deeds were perpetrated which formed the subjects of the following trials; for, a short time afterwards, her body was found in a pit, near Penn's mill, in the parish of Ashton, in such a situation as proved that she must have been thrown in while in a state of insensibility, and her clothes being covered with dirt and blood, led to an examination, from which resulted the dreadful and appalling fact, that her person had been violated by brutal force, previous to her being thrown into the pit.
On a minute examination of the ground contiguous to the pit, traces of the footsteps of a man and of a woman were discovered impressed in the earth, and a careful and intelligent investigation distinguished where the parties had run, walked, and dodged. The footsteps of the woman were ascertained to be those of Mary Ashford, from a comparison with her shoes, which, with a small bundle she had with her were found lying on the brink of the pit, and the footsteps of the man were remarkable from the peculiar manner in which the soles of the shoes were nailed, and from the loss of certain nails from each shoe. in addition to these traces, a track of blood, marked in drops in the immediate neighbourhood of the pit, but gradually increasing in quantity, led the observers to the foot of a tree, at some distance, where the ground was marked with the impression of a human figure, with the arms and legs extended, and marks corresponding with the knees and toes of man in contact therewith. Near the centre of this mark was a very considerable mass of coagulated blood, and from other impressions on the ground, it was clearly perceived that the ravisher, having completed his brutal purpose, had taken his victim in his arms, and that from her body had dropped those streams of blood which were traced to the brink of the pit -- for on the path parallel to the line of blood, were discovered traces of the man's footsteps, while there was a total absence of those of the woman; and so evident was it that but one person had gone this way, and that by the path only, that the dew was not brushed from the grass over which the blood had dripped, which, to use the words of one of the witnesses, must have been the case, had only a frog or a mouse passed over it.
These discoveries being made, the most active steps were taken to detect and bring to justice the perpetrator of such frightful crimes; and from the well-known looseness of his character, his having been seen with her in the fields within a short time of her death, and, above all, from the gross and scandalous declaration of a determination to be intimate with her, suspicion immediately and unequivocally pointed out as the ravisher and murderer of Mary Ashford, her volunteer companion in the dance, Abraham Thornton.
This man was the only son of a bricklayer at Castle Bromwich, in the country of Warwick, and had from his infancy up to the time of the dreadful catastrophe, worked with his father as an assistant in the business. He was about twenty-five years of age, five feet seven inches in height, and of a ferocious and forbidding aspect. His natural thickness was greater than common, but excessive corpulency had swollen his whole figure into a size rather approaching deformity. His face was swollen and shining, his neck very short and very thick, but his limbs were well proportioned. He was a great adept in gymnastic games, and accounted one of the strongest men in the country. So athletic was his form, that his arm-pits did not possess the usual cavities, but were fortified with powerful ligaments.
Thornton was immediately taken into custody, and on an examination of his clothes, marks of blood were found upon them, corresponding with those on the unfortunate girl. His shoes were compared with the traces of footsteps in the fields, and found to agree therewith, beyond all shadow of doubt, and indeed he artfully confessed that he had been connected with Mary, but by her own consent; this declaration was, however, regarded as a subterfuge.
On the examination of the prisoner on the 27th May, before William Bedford, Esq., magistrate for the county of Warwick, the foregoing facts were fully proved, and the prisoner was committed for trial, having previously made the following deposition:
Tyburn, in the Parish of Ashton, in the County of Warwick. -- The voluntary examination of Abraham Thornton, of Castle Bromwich, in the said parish of Ashton, taken before William Bedford, Esq., one of his majesty's justices of the peace for the said county, who saith that he is a bricklayer, that he came to the Three- tuns, at Tyburn, about six o'clock last night, where there was a dance; that he danced a dance or two with the landlord's daughter - - but whether be danced with Mary Ashford or not he cannot recollect. Examinant stayed till about twelve o'clock; he then went with Mary Ashford, Benjamin Carter, and a young woman, who he understood to be Mr Machin's housekeeper, of Erdington; that they walked together as far as Potter's. Carter and the housekeeper went on towards Erdington. Examinant and Mary Ashford went on as far as Mr Freeman's; they then turned to the right, and went along a lane till they came to a gate and stile, on the right-hand side of the road; they went over the stile, and into the next piece, along the foot-road. They continued along the foot-road four or five fields, but cannot tell exactly how many. Examinant and Mary Ashford then returned the same road. When they came to the gate and stile they first got over, they stood there ten minutes or a quarter of an hour talking; it might be then about three o'clock. Whilst they stood there, a man came by (examinant did not know who) -- had on a jacket of a brown colour. The man was coming along a foot- path they had returned along. Examinant said, "Good morning" and the man said the same. Examinant asked Mary Ashford if she knew the man; she did not know whether she knew him or not, but thought he was one who had been at Tyburn. That examinant and Mary Ashford stayed at the stile a quarter of an hour afterwards; they then went straight up to Mr Freeman's, again crossed the road, and went on towards Erdington till he came to a grass field on the right hand side of the road, within about one hundred yards of Mr Greensall's, in Erdington. Mary Ashford walked on, and examinant never saw her after; she was nearly opposite to Mr Greensall's. Whilst he was in the field, he saw a man cross the road for James's; but he did not know who he was. He then went on for Erdington work-house, to see if he could see Mary Ashford. He stopped upon the green about five minutes to wait for her; it was then four o'clock, or ten minutes past four o'clock. Examinant went by Shipley's on his road home, and afterwards by John Holden's, where he saw a man and woman with some milk cows, and a young man driving some cows out of a field, who he thought to be Holden's son. He then went towards Mr Twamley's mill, where he saw Mr Rotton's keeper taking the rubbish out of the nets at the flood-gates. He asked the man what o'clock it was, he answered it was near five o'clock. He knew the keeper. Twamley's mill is above a mile and a quarter from his father's house, with whom he lives. The first person he saw was Edward Leek, a servant of his father, and a boy; -- that his mother was up. He took off a black coat he had on, and put on the one he now wears, which hung up in the kitchen, and changed his hat, and left them both in the house. He did not change his shoes or stockings, though his shoes were rather wet from having walked across the meadows. That examinant knew Mary Ashford when she lived at the Swan, at Erdington, but not particularly intimate with her. That he had not seen Mary Ashford for a considerable time before he met her at Tyburn. Examinant had been drinking the whole evening, but much as to be intoxicated.
THE TRIAL
On the 8th of August 1817, Abraham Thornton was capitally indicted at the Warwick Assizes, for the wilful murder of Mary Ashford, and scarcely any trial upon record ever excited so universally, the attention of all ranks of people, as the present. By six o'clock in the morning, great numbers of persons had assembled before the gates of the County Hall, using every endeavour, interest, and entreaty, to gain admission; and by eight o'clock, the time fixed upon for the trial to begin, the press at the doors was inconceivably great, and it was with the utmost difficulty that way could be made by the javelin-men, for the entrance of the witnesses and other persons who were subpoened, either for the prosecution, or defence of the prisoner. It was past nine o'clock before the doors were thrown open to admit the people, who pressed for admittance into the Hall, indiscriminately. The court by this time, was crowded in all parts to excess. The judge entered the court a few minutes past eight o'clock, when Mr Hilditch, clerk of the arraigns, proceeded to call over the names from the panel, for the purpose of forming the jury. The jurors having answered to their names, and entered the box, the prisoner, who had been placed at the bar in the intermediate time, was told by the officer of the court, that those were the good men who were to try him for his life or death, and that if he had any objection to any of them, he must make his objection, as their names were called over, before they were sworn. The jurors were then sworn, one only being challenged by the prisoner, and the trial began.
The officer of the court then read over the indictment, which consisted of two counts. The first charged the prisoner, Abraham Thornton, with having, on the 27th of May last, in the royal town, manor, and lordship of Sutton Coldfield, in the county of Warwick, not having the fear of God before his eyes, but being moved by the instigation of the devil, wilfully murdered Mary Ashford, by throwing her into a pit of water.
He was then asked by the officer, Abraham Thornton, are you guilty of this murder, or not guilty? -- To which he replied, Not Guilty.
Officer. -- God send you a good deliverance.
The officer then read over the second count, charging the prisoner with having, on the morning aforesaid, committed a rape upon the body of the said Mary Ashford, and was again addressed by the officer, Prisoner, are you guilty of this rape and felony, or not guilty? -- To which he replied as before, Not Guilty.
Officer. -- God send you a good deliverance.
The counsel were, for the Crown, Mr Clarke, Mr serjeant Copley, and Mr Perkins; for the Prisoner, Mr Reader, and Mr Reynolds.
The junior counsel (Mr Perkins), briefly stated to the jury and the court, the nature of the charges against the prisoner.
Mr Clark; leading counsel for the prosecution, then addressed the jury:
'Gentlemen of the Jury -- I am of counsel for the prosecution: and by the indictment, which has just now been read to you by the officer of the court, the prisoner is charged -- with one of the highest offences that human nature is capable of committing, nothing less than of shedding the blood of a fellow-creature!
'I need not enlarge upon this subject. The crime itself is incapable of aggravation. It is my painful province, however, to lay before you a statement of the evidence which will be produced in support of that charge; and, as it is not my duty, so neither is it my inclination, to exaggerate upon this occasion; but public justice requires that the whole proof should be brought fully and fairly before you. I will forbear commenting upon the enormity of this barbarous transaction, but shortly state to you the facts that will be produced in evidence.
'The deceased was a young woman of engaging manners, -- handsome in her person, -- and of unblemished character. She was well known in that part of the country, -- that is, at Erdington, and in the neighbourhood, near to which this barbarous crime was perpetrated; but the precise place, and all the horrid circumstances attending it, you will learn from the respective witnesses. The deceased was the daughter of poor parents, -- of poor but very honest parents, -- but she had lately been at her uncle's, who is a farmer at Langley. Under the roof of this relation, she was still living, when she met with a violent death, -- a death, under such distressing circumstances, that the mind shrinks, appalled, at the melancholy recital. For, it will be proved to you, by a most respectable medical gentleman, who examined the body of the deceased, that, recently before she had been thrown into the pit, she had been treated with brutal violence.
'Gentlemen, -- It will also be proved to you, that the deceased, Mary Ashford, on the evening of the 26th of May, the night preceding the murder, went, in company with her friend and acquaintance, a young woman of the name of Hannah Cox, to a dance at a public-house, in the neighbourhood of Castle Bromwich, called Tyburn House. The prisoner was one of the company -- and it was at this house, and at this time, I believe, that the deceased first saw, or at least knew, the prisoner at the bar. The prisoner, it seems, when the deceased first entered the house, inquired her name, and who she was. On being told by one of the company, that it was old Ashford's daughter, he replied -- 'I have been connected with her sister, and I will with her, or I'll die by it.' The prisoner after this, went into the dancing-room -- introduced himself into her company, and, as I am informed, went down a dance or two with her. About twelve o'clock, the deceased and the prisoner left the house together. The deceased, it appeared, left for the purpose of returning home. Hannah Cox, the young woman who accompanied the deceased to Tyburn-house, saw them together after they had left the house; and went part of the way home with them. Another witness that will be called, will tell you, that he also saw them together at the same time. From this time, till three o'clock, we have no account of them. At three o'clock, a man, another of our witnesses, saw them sitting on a stile, in the road between Tyburn-house and a friend's of the deceased, living at Erdington, where the deceased had changed her clothes, previous to her going to the dance on the evening before. This was about three o'clock in the morning of the 27th. After this we hear no more of the deceased till about four o'clock; she then called at her friend's house, Mrs. Butler's, at Erdington-green, to change her dress, and put on the clothes she had worn on the preceding day. The deceased called up Hannah Cox, who let her in; and, at this time, this witness will tell you, she was in good spirits, and appeared as cheerful as usual.
'Now, gentlemen, it will be shewn, that the deceased left this house between four and five in the morning of the 27th, and between that time and the time when the body was found in the pit, or rather, the clothes were seen, which led one of the witnesses to suppose, that some person had been drowned in the pit, which was about half past six, in the morning, the horrid crime must have been perpetrated. Other witnesses will describe to you the appearance of a fallow-field, which had been recently harrowed. In this field were plainly traced the footsteps of a man and a woman. The footsteps led from a path in this field, towards Langley, which, I before observed to you, was the place where the uncle of the deceased resided, and where she was going when she left Mrs. Butler's. It will likewise be shewn to you, that the deceased was seen, by several persons, on her way towards this place. It will be stated too, that these foot-marks had been made by two persons who had been both walking and running; and as if two persons had been struggling together. In following the traces of these footsteps, they led to a spot where there was an impression of a human figure extended on the ground. In the middle of this impression there was -- a quantity of blood, -- at the bottom of the figure there was a still larger quantity of blood, and in the same place were seen the marks of a man's knees and toes. From that spot the blood was distinctly traced for a considerable space on the grass, by the side of the pathway towards the pit where the body was found; but along with this blood no footstep was traced. There was dew upon the grass, consequently, had any foot gone along there, the dew would have been brushed away. It appeared plainly as if a man had walked along the foot-way carrying a body, from the extremity of which the blood dropped upon the grass. At the edge of the pit, her shoes, bonnet, and bundle, 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 the body he had in his arms into the pit.
'When her body was examined, there were marks of laceration upon it, and both her arms had the visible marks of hands, as if they had been pressed with violence to the ground: in her stomach some duck-weeds were found, which proved she breathed after she had been thrown into the water, but the small quantity merely shews that she had not previously been quite dead. The evidence of a skilful surgeon will shew that, down to this violence, she had been a virgin.
'It is, therefore, natural to suppose, that the violent agitation and outrageous injury of such an assault, stunned and deprived her of animation for a moment: -- that, in this state she was thrown in the water; and that the animation restored to her for a moment, was instantly cut off by drowning.
'Hitherto, however, the prisoner is not connected with the act; but you will not only find him with her at three o'clock, you will also find, by his own admission, that he was with her at four. You will find the marks of the man's shoes in the running and struggling correspond exactly to his. You will find by his own admission, that he was intimate with her, and this admission made, not before the magistrate, nor until the evident proofs were discovered on his clothes; her clothes too, afford most powerful evidence as to that fact.
'At her friend Cox's, at four o'clock in the morning, she put off her dancing dress, and put on the dress in which she had gone to Birmingham the day before. The clothes she put on there, and which she had on at the time of her death, were all over bloody and covered with dirt. The surgeon will tell you that the coagulated blood could not have proceeded except from violence. Therefore, the case appears to have been, that the prisoner had paid her the greatest attention during the night -- shewn, perhaps, those attentions which she might naturally have been pleased with, and particularly from one her superior in life; but that, afterwards, he waited for her on her return from Erdington, and first forcibly violated her, and then threw her apparently lifeless body into the pit.
'It will be attempted to shew you, that he returned home, and that some other person must have met her, and brought her to the dismal end she met with: But, gentlemen, as footsteps were traced through the harrowed field to a stile leading to his father's by the very course he took, and he admits an intimacy with her, that is a circumstance of the utmost importance, and you will bear in your mind that he did not admit this until proofs were adduced against him.
'Gentlemen, the evidence will be laid before you. -- From it you will form your judgment, and I desire you to lay out of view every thing that I may have said, unless it shall be confirmed by the learned judge who presides at this trial.'
The learned counsel having sat down, the other counsel for the prosecution proceeded to examine evidence to substantiate the charge against the prisoner.
HANNAH COX (Examined by Serjeant Copley)
I lived in the service of Mr Machell, at Erdington, in the month of May last, and slept at my mother's, Mary Butler's, on the opposite side the way, facing my master's house. Mary Ashford came to my master's house, on Monday, the 26th of May last, about ten o'clock in the morning. She had a bundle with her, and said she was going to Birmingham market. She had on a pink cotton frock or gown, a straw bonnet, with straw-coloured ribbons, a scarlet spencer, half- boots, and black stockings. She had a bundle with her, containing a clean frock, a white spencer, and a pair of white stockings. I went with her to Mrs. Butler's, to leave her bundle. She then went to Birmingham, and was to come back as soon as she could, as she was going with me to Daniel Clarke's, at Tyburn-house, to a dance. Clarke's is a public-house, about two or three miles from Erdington, on the turnpike-road. About six o'clock, she called upon me at Mr Machell's, and we went over to Mrs. Butler's together, where she changed her dress, and put on the clothes before described, with a pair of new shoes which I had fetched for her from a shoemaker's at Erdington; she left her other clothes at Mrs. Butler's, and we set out to the dance between seven and eight o'clock. The deceased was about twenty years of age. We went into the dancing-room, and staid there about a quarter of an hour; both the deceased and the prisoner were in the dancing-room. I left the public-house between eleven and twelve o'clock. The deceased did not go out of the house with me. I spoke to her, and she told me she would not be long; and I went out and waited for her on the bridge, which is about thirty yards from the house. While I was on the bridge, Benjamin Carter came out of the house to me, and I afterwards sent him for Mary, and then she and Abraham Thornton came to us. I waited on the bridge from the time I first went there, till the prisoner and the deceased came to me, about ten minutes or a quarter of an hour, and then we all went towards Erdington; that is, the deceased, the prisoner, Benjamin Carter, and myself. Thornton and Mary Ashford went on first. Carter stopped talking with me for about ten minutes; and then I followed them, leaving Carter behind, but he overtook me in nine or ten minutes after; he only stopped about two minutes, and then went back to the house. After Carter left me, I went on after Mary Ashford and Thornton, and when I overtook them, walked with them till we came between Mr Reeves's and the Old-Cuckoo, which is a little before you come to the road that leads off to Erdington; I did not go with them to where the road separates, but very near to it. I was before the prisoner and the deceased at this time, and took the road to the left of a house called Loar's; I then went home to my mother's, and went to bed. I know the person who keeps the Old-Cuckoo; his name is Potter. In the morning, Mary Ashford came to my mother's house and called me up, and I got up and let her in; I looked at the clock, and found it wanted twenty minutes to five; my mother's clock, however, by the other clocks in the neighbourhood, was not right; it was too fast. At this time the deceased was in the same dress as she had on the over night; I noticed it particularly, and am sure it was the very same she bad on the night before. I did not perceive any agitation or confusion in the person of the deceased; neither her person nor her dress were disordered that I saw; on the contrary she appeared very calm and in very good spirits. She did not go into another room to change her dress, but remained in the house all the time, and I stayed with her. When she had changed her dress, she tied up the clothes she took off, in a bundle along with some market things; she wrapped the boots in a handkerchief, and kept on her shoes. The market things were some sugar and other things, which she brought from Birmingham-market, the day before. She might have been altogether in the house a quarter of an hour, but I cannot exactly say: she then went away, and I saw no more of her. When she changed her clothes, she did not sit down on a chair, but stood up, and stood also while she pulled off her stockings. She did nothing more in the house than change her dress, but I did not observe that her frock was stained, nor did she tell me that she had any complaint upon her. The road leading to the deceased's uncle's, went along Bell-lane.
(Cross-examined by Mr READER, Counsel for the Prisoner)
I was an acquaintance of the deceased; she and I were very intimate; she appeared in perfect health, when she came to call me up. I think she was about twenty years old. I know the father of the deceased, he is a gardener at Erdington, near the place where I live; the deceased's grandfather lives near Bell-lane, about two or three miles off; the place where I parted with the prisoner and the deceased, is about two or three miles from my own home. I can't say exactly how far the deceased's grandfather's is from the pit where the body was found, it may be about three or four hundred yards. When the deceased came and called me up in the morning, she told me she had slept at her grandfather's; her grandfather's is about half a mile from Potter's. When she had called me up, I asked her how long Mr Thornton stopped, and she said a good bit; I asked her what had become of him, and she said he was gone home. When she left me in the morning, she said she was going to her grandfather's.
BENJAMIN CARTER(Examined by Mr PERKINS, Counsel for the Crown)
My name is BENJAMIN CARTER, I am a farmer, and live with my father at Erdington. On Monday night, the 26th of May, I was in the room where the dancing was, at Tyburn house, and saw Mary Ashford and the prisoner there, dancing together. I left the house between eleven and twelve o'clock, and then went to the bridge, to Hannah Cox; I stayed with her there about a quarter of an hour, and after that Hannah Cox desired me to go back to the house to see for the deceased, Mary Ashford, and I went back to see for her. When I went into the room where the dancing was, I saw Thornton, the prisoner, dancing with the deceased; I spoke to Mary Ashford, and then I went back to the bridge to Hannah Cox, and in about a quarter of an hour, Mary Ashford and Thornton came to us, at the bridge; I went with them a little way towards home, and then tuned back towards Tyburn-house. I afterwards, a second time, overtook them all between Mrs. Reeves's and Mr Potter's -- Mary Ashford the deceased, the prisoner Thornton, and Hannah Cox. Soon after that, I parted with Hannah Cox, and she turned off another road to go home; and I went on with the prisoner and the deceased to the turn of the road, and then went home, and saw no more of them that night.
JOHN UMPAGE (Examined by Mr CLARKE, Counsel for the Crown)
I live at Witton, near Erdington, in the parish of Aston. I remember being at Mr Reynolds's house, at Penn's, on Tuesday morning, the 27th of May last; I was in the lower part of the house. While I was there, I heard somebody talking in the road, as I sat in the house. When I first heard the talking, it was a little after two o'clock in the morning, and I heard the talking until a few minutes before I started home, about a quarter before three. When I got out of doors to go home, I did not see anybody immediately on going out, but when I got up the foredrove, I saw a woman at the stile at the bottom of the foredrove; the foredrove leads into Bell- lane, and Bell-lane, that way, leads towards Erdington. When I got up to the stile, I discovered who the persons were, the man was the prisoner, whom I had known before; I bid him Good morning, and be said Good morning. I did not know who the woman was, she held her hbead down, so that I could not see it; I left them sitting against the stile.
Cross-examined by Mr REYNOLDS
I know the pit where the body was found afterwards, it is about 100 yards from Reynolds's house; there is another house in the neighbourhood, nearly adjoining the close. Reynolds's family consists of Thomas Reynolds and his daughter. When I was there at two o'clock, I was talking with Reynolds's daughter; I went out of the house about a quarter before three, and left Thomas Reynolds's daughter up. I was within about a hundred yards of the prisoner and the deceased before I saw them; the girl was standing, and he was leaning against the stile. She evidently appeared as though she would not be known, and she held her had down.
THOMAS ASPREY, Examined by SERJEANT COPLEY
I live at Erdington, I remember on the morning of the 27th of May last, being on the road near Erdington; I was going to Great Barr; I crossed Bell-lane, leaving Erdington on the left, and Bell-lane on the right; I saw Mary Ashford in Bell-lane against the horse-pit; she was going towards Erdington; she was walking very fast; it was about half after three o'clock; she was alone, and I looked up Bell-lane in the direction from which she was coming, and saw no other person, either there or about there.
Cross-examined by Mr READER
The deceased was going in a direction towards Mrs. Butler's house, which is about a quarter of a mile from the spot where I saw her.
JOHN KESTERTON Examined by Mr PERKINS
I live at Erdington with Thomas Greensall, a farmer; on Tuesday, the 27th of May last, I was up soon after two o'clock. I was at the stable to fettle the horses; the stable looks towards the road that leads into the village of Erdington. I put the horses to the waggon at four o'clock, and then took them to the pit by the side of the road in Bell-lane to water. When the horses had drank, I turned them round, and went straight off for Birmingham, along the road through the village of Erdington. I know the house of Mrs. Butler, and passed it, and when I got a little way past, I turned to look back, and saw Mary Ashford coming from out of the widow Butler's entry. I knew her, and smacked my whip, and she turned and looked towards me; this was a quarter past four; when she came out of the entry, she went up Bell-lane, the road that leads for Freeman's and Penn's; she seemed to be going in a hurry. I hardly knew the prisoner Thornton at that time by sight, but I had seen him; I saw no person like him that morning in the road; I saw no person but her, although the road is very broad, and I could see for some distance.
Cross-examined by Mr READER
I knew the deceased very well, and could not therefore be mistaken in her person. I saw her about a quarter past four, coming out of the entry, and saw nobody else.
JOSEPH DAWSON, Examined by Mr CLARKE
I saw Mary Ashford on the morning of the 27th of May, about a quarter past four, as near as I can guess. She asked me how I did, and passed on, and I asked her how she did, and passed on. I recollect she bad on at that time, a straw bonnet and scarlet spencer, and had a bundle in her hand. I know where Mrs. Butler's house is, in Erdington, and I also know Bell-lane. It was between Bell-lane and Mrs. Butler's house that I saw her, we were dose together in the road between Butler's house and Bell-lane near Henry Holmes's. When she parted from me she was going towards Bell-lane, and was walking very fast. I did not see any man about at that time.
Cross-examined by Mr READER
The way she was going would be the way either to her grandfather's or her uncle's, where she lived.
GEORGE JACKSON, Examined by Mr PERKINS
I came out of Birmingham on Tuesday morning, the 27th of May. It was five o'clock when I was at the top of Moor-street, in Birmingham. I was going beyond Penn's Mills, betwixt Newhall- fields and Sutton, to work. From Birmingham I came to the workhouse at Erdington, and then along the road for Penn's Mills. I do not know the name of the road which turns by The workhouse. I turned out of the road into the foredrove that leads for Penn's, out of Bell-lane, and going along that foot-road, I came to a pit. When I came near to the pit, I observed a bonnet, a pair of shoes, and a bundle. They were close by the top of the slope, that leads down into the pit. I looked at them; I saw one of the shoes all blood; then I went towards Penn's mill to fetch a person to come and look at them; I brought a man from the first house, he was coming out of his own door-place, and we went to the pit; his name is Lavell. I then told him to stand by these things, while I fetched some more hands from Penn's mills, as nobody should meddle with them. Going down from the pit along the foot-path, I saw some blood about thirty yards from the pit; it might be about a couple of yards round, in a triangle. I went a little farther, and saw a lake of blood by the side of a bush. I saw more some to the left, on some grass; then I went forward to the works at Penn's Mills, to let them know what had happened. I got assistance, and sent Lavell to the pit, and went myself to Penn's Mills to let them know, and then I came back again. The persons I had sent there were with Lavell, when I returned. I did not stop till the body was found, but went to my work.
(Cross-examined by Mr REYNOLDS)
The distance from Birmingham to this pit might be about five miles or five miles and a half, as near as I can guess. It is a public road the whole way. When I got to the pit, it was about half past six. The pit is close to the foot-path; the foot-path is close to the carriage-road, separated by a hedge. The pit is close to a stile, and the field in which the pit is, was a grass field. The field immediately before it, coming in the way I did, is a ploughed field, through which there is a public footpath. In order to get from this ploughed-field into the field where the pit is, it is necessary to get over a stile. The ploughed field is separated from the field in which the pit is, by a high hedge, and the only communication is by this stile. The pit where I saw the bundle, is rather steep than otherwise. Penn's Mills are about half a mile off. Mr Webster has there a considerable manufactory, but I did not see any of the men at work, but several about.
Re-examined by Mr PERKINS
From the place where the bundle and shoes were, to the pit, might be about four yards; that is, from the top of the slope to the water. I cannot tell what time it was when I got to Mr Webster's works. It was soon after I went to Lavell's. It might be half an hour or three quarters after I first saw the bundle, till I got to Mr Webster's works. The bundle and shoes were about a foot from the top of the slope.
WILLIAM LAVELL, Examined by Mr CLARKE
I am a workman at Penn's Mills. I remember on Tuesday, the 27th of May, seeing George Jackson. In consequence of what I heard from him, I went up to the pit. I know the harrowed-field through which the foot-path from Erdington to Mill-lane goes. It is adjoining the field where the pit is. I also know the foot-path, and went along it to see if I could discover any footsteps. In going along the field, the first steps I discovered were a man's, going from the pit towards Erdington. Those footsteps were going across the ploughed field to the right hand, as I was going towards Erdington. There is a dry pit at the corner of the field to the right, and those man's footsteps were coming up towards that dry pit. I went higher up that path towards Erdington, and, at about eight yards distance, I discovered a woman's footsteps, which were going the same way to my right. I traced the steps of the man, and the steps of the woman, from these two spots, but these two footsteps never met together at any time. They came so far together as to run near each other, when about fifteen yards nearer the hedge. By the stride and sinking into the ground of the footsteps, I could tell the parties were running. I traced them to the right-hand side of the close up to the far corner where the dry pit is, running together. When I got to that corner, I observed them dodging backwards and forwards. I could not tell whether they appeared to be still running; they seemed shorter, as though they had been dodging about. I traced the steps on the grass at the corner of the piece to that dry pit, on the right-hand side. When they got upon the grass, I could tell they went towards the water-pit in the harrowed-field. In tracing them up to that pit, I traced them on the harrowed-ground. Here they appeared to be walking, sometimes the woman's feet went on the edge of the grass, and sometimes on the edge of the field, sometimes on the hard earth, and sometimes on the grass. The man's feet generally kept the grass, but there was one place where they were both off together. I could see they had been on the grass. I traced those footsteps that way down to the first pit, the water-pit in the harrowed-field. I could not trace them together any farther, but we traced the man's foot till it came to the hard road. The woman's feet were on the grass, on the left of the man's, which prevented us from tracing them. I could not trace them any further towards the second pit, because the road beyond was hard.
I traced other footsteps in a contrary way, going from the pit in the harrowed field; they began down at the hard road, on the footpath they were the footsteps of a man; the man whose footsteps they were, appeared to be running; that was on the harrowed ground. There were no other footsteps, than those of a man going that way, at that time. I traced those steps about three parts up the piece, it might be rather better, towards the dry pit; and having traced them so far, I discovered the footing turned down to the left; as I was pursuing the track, after they turned to the left, I traced them down to the gate at the farther corner, crossing the footpath, which they crossed at the middle of the piece, or near upon it. After the footsteps bad turned, they appeared to be the footsteps of a man running, and they went then quite to the corner; there were no other tracks than a man's, and I could trace them no further than the gate. On the other side of the gate, there was a green-sward clover; that gate led into some meadows, towards Pipe-hall. I know Castle Bromwich, and that road would carry one to Castle Bromwich, by the- great Chester-road.. From Penn's-mill lane, the regular road to Castle Bromwich, from the corner of the pit, would have been straight across the piece up the foot road, and so into Bell-lane. By the way which I traced those steps to the corner of the field, a man would get sooner to Castle Bromwich, than going the regular way; and from that gate where I lost the footsteps, there was no regular road to Castle Bromwich; but to go that way, he must cross the fields upon trespass, but that would make a shorter cut. Joseph Bird and myself afterwards went to this field, to try the footsteps by Abraham Thornton's shoes, which Joseph Bird took with him. At that time, there was no woman's shoe taken; the shoes were right and left sboes, and those footsteps of the man appeared to be made with the right and left shoes, and appeared to be the footsteps of the same man. When Bird and I had the shoes with us, we tried those shoes on about a dozen of those footsteps. The shoes fitted those footsteps all exactly. We compared them with the foot steps on both sides of the way and have no doubt at all, that these footsteps were made with those shoes. We also compared them with those footsteps that turned off the road, about eight yards from where the footsteps of the woman turned off, and they fitted there. We then compared them with those parts where the man and woman appeared to be running together, and there also they fitted. We compared them where they dodged, and they agreed in all those parts. There were some of the footsteps which I had covered with boards at the corner, up by the dry pit. Those shoes of Thornton's were nailed with a particular nail, a sparrow-bill; but at the toe of the right shoe, there are not any on one side, and there were marks of these sparrow-nails on those footsteps which I had covered up. There was one step trod on a short stick which throwed the foot up, and there were the marks of two nails. Bird and I went after that, with Mary Ashford's shoe to this place, and compared that shoe with the woman's steps that we had traced; we compared it with those that turned to the right, with the steps where the man and woman appeared to be running, with the woman's steps where the doubling was, with those where the woman was sometimes on the grass and sometimes off, in fact in every place, and with all those footsteps it so completely corresponded, as to leave no doubt in my mind, that the woman's steps all along were made by those shoes. I know the slope of the pit where the body was found, and saw one footstep near the edge of the slope, which appeared to be a man's. The direction of that step, appeared to be the left foot sideways, and it inclined towards the slope, but I forgot to compare the shoe with that. The bundle was by the side of the pit, and beside the bundle, there was a pair of shoes and a bonnet; those shoes were the shoes which I compared with the footsteps. I saw some blood about forty yards from that pit, below the gate; and there was also blood about fourteen yards up, nearer the pit; I traced that train of blood for fourteen yards; it run straight up towards the pit, across the path, and then about a foot from the path on the clover; where I saw it on the clover, there were no footsteps. Those drops on the clover, were about foot from the footway. The dew was on the clover. The blood on the clover, came in drops at last, but it was a regular run where it first came on the clover; -- not all the way.
JOSEPH BIRD then confirmed Lavell's evidence in every particular.
JAMES SIMMONS
I am a labourer, and work at Penn's-mills. I went to the pit where the body was found, on the morning of the 27th of May, about seven o'clock; afterwards went home and fetched a rake and some long reins, and came back and dragged for the body; and after throwing the rake into the water three or four times, we dragged out the body of Mary Ashford; when it was taken out of the pit, there was a little mud, and some old oak leaves about the face.
JOSEPH WEBSTER, Esq.
I live at Penn's-mills; the mills belong to me. On the morning of the 27th of May, I was informed that a woman was drowned in a pit, not far from my house, and in consequence of receiving that information, I went immediately to the pit; as soon as I got there, the body was taken out of the water; this was about eight o'clock. I then ordered the body to be taken to Lavell's house; and sent the bundle, the bonnet, and the shoes, with it. I observed, on a spot about forty yards from the pit, a considerable quantity of blood; it lay in a round space, and was as large as I could cover with my extended hand. There was the impression of a human figure on the grass, on the spot where the blood was. The shoes I had sent with the body, were stained with blood. It appeared that the arms and legs had been extended quite out. The arms had been stretched out their full length. A small quantity of blood lay in the centre of the figure; and a larger quantity of blood lay at the feet. I perceived what appeared to be the marks of the toes of a man's large shoes, at the bottom of the figure, on the same place. The largest quantity of blood at the feet of the figure, was much coagulated. I traced the blood for ten yards up by the side of the path, towards the pit. At the stile, a little below this spot, and further from the pit, in the continuance of the footpath, marks appeared as if one or more persons had sat down. These marks were on the other side the stile, in the next field, and in a contrary direction from the harrowed- field. I then went home to dress, and returned again in about an hour. When I came back, I went into the harrowed-field, and there I perceived the traces of a man's and woman's foot; they were pointed out to me by Bird; as I had previously ordered my servants to look over that field. On seeing these footsteps, I sent for the shoes I had before sent with the body to Lavell's; and on comparing those marks with the shoes, they exactly corresponded. There was a spot of blood on the inside of one of the shoes; and on the outside of the same shoe, on the inside of the foot, there was much blood.
[The shoes were called for, and the witness pointed out the spots to the jury, which he had alluded to in his evidence. The shoe, when it had been examined by the jury, was handed up to the judge, who also examined it very minutely, and then addressing himself to the witness, asked, Mr Webster, Is it a spot on the inside of the shoe that you have described? to which the witness replied, Yes, my lord; the marks at that time, were plain to be seen; they are not so plain now.
The spot of blood on the inside of the shoe was quite plain, when perceived on this occasion; but those on the leather, on the outside, could scarcely be perceived.]
Examination of Mr WEBSTER continued
After comparing the shoes with the footmarks in the harrowed-field, I went to Lavell's, to examine the body. The spencer had been taken off; I observed, on each arm, what appeared to me to be marks from the grasp of a man's hand. I did not make observations of anything more about the body at that time.
I know Mrs. Butler's; I set my watch with Mr Crompton's and then went the same morning, to Mrs. Butler's house, at Erdington, to examine her clock. My watch, I believe to be very accurate, and on comparing them, her clock was forty-one minutes faster than my watch; I saw the clothes on the body of the deceased; they were a red spencer, a coloured gown, and black worsted stockings; I observed much blood on the seat of the gown; it was in a very dirty state; there was blood also on other parts of the gown; the clothes I have spoken of are the same that were on the body, when it was taken out of the pit; Lavell's wife took care of them; I had them in my possession till I delivered them to Dale, the officer, after the prisoner had been examined by Mr Bedford.
Cross-examined
Examined Mrs. Butler's clock, very accurately; it was forty-one minutes too fast by my watch. My watch goes by Birmingham time; by the church clocks.
FANNY LAVELL
I an the wife of William Lavell, a former witness; I remember on the 27th of May last, the body of Mary Ashford being brought to my house; I received a bundle of clothes at that time, they were sent to me by Mr Webster, a bonnet and a pair of shoes was also delivered to me; I took those things to Mr Webster, the next day; I undressed the body of the deceased; part of her clothes I untied, and the other part I tore off; I found her clothes in a very bad state; the gown was stained very much behind; it was very dirty; blood and dirt; the shift had a rent up one side, the length of my hand; I did not observe any blood on the stockings.
THOMAS DALE, one of the assistants to the police, at Birmingham, produced the bundle which he had received from Mr Webster, It contained the clothes worn by the unfortunate female, at the time of her death. The pink gown was much stained with blood, and dirty; the water had caused the blood to spread over the seat of the garment. The white petticoat presented a similar appearance. In the chemise, there was a rent at the bottom, about six inches in length, which was discoloured. The deceased had no flannel petticoat on. On the black worsted stockings a spot or two could be perceived, but they were so faint, that no one could determine what had been the cause of them.
The clothes that the deceased had taken off at Mrs. Butler's, and fled up in a bundle, found by Jackson, at the edge of the pit, and which she wore at the dance, were also shewn to the jury and to the court.
MARY SMITH
I live at Penn's Mills; I examined the body of Mary Ashford, on the morning of the 27th of May last, the morning it was taken out of the pit; the body when I examined it was at William Lavell's house; it was about half past ten o'clock in the morning; the clothes had been taken off before I got there.
The witness here went into a particular description of the appearances of the body on her examination, but as the evidence so given was necessarily of a very peculiar description, we are under the necessity of omitting the details, and confine ourselves to merely stating that the testimony of the witness strongly confirmed the alleged brutal violation of the person of the deceased.
On each arm, just above the elbow, there was a black mark, which appeared to me to have been made by the grasp of fingers.
WILLIAM BEDFORD, ESQ.
I am a magistrate for the county; I went to Tyburn-house on the 27th of May last, and took the deposition of the prisoner; it was read over to him, and then signed by the prisoner in my presence.
The deposition of the prisoner, was here produced, and read by the officer.
This deposition was taken about one o'clock on the 27th of May, at the house of Daniel Clarke.
THOMAS DALE
I am one of the assistant constables of Birmingham; I was applied to go to Tyburn-house, on the morning of the 27th of May last and went there, in consequence of that application; it was about ten o'clock when I got there; I took the prisoner into custody soon after; the landlord, Daniel Clarke, and I believe, some others, were in the room with the prisoner when I first went in; I saw Mr Bedford, the magistrate there about eleven o'clock, but before he came I had taken the prisoner into custody; I had some conversation with him; we were all talking together for some time. I told him he was my prisoner; I searched the clothes, and the person of the prisoner; we went into a room upstairs, the prisoner, myself; William Benson, and Mr Sadler; I examined his small clothes, and his shirt, they were both very much stained; I did not observe anything, on any other part of his dress; I asked the prisoner, how his clothes came in that state; he said he had been concerned with the girl, by her own consent -- but he knew nothing about the murder; the prisoner was afterwards examined by Mr Bedford, the magistrate;
I was present at that examination.
Cross-examined by Mr READER
I had been with the prisoner an hour before Mr Bedford the magistrate came to Clarke's; he confessed to me that he had had a connexion with the deceased, I believe, before he was taken to be examined; I don't recollect that anybody was present at that time.
Re-examined by SERJEANT COPLEY
I am not quite sure whether the prisoner told me that he had had connexion with the deceased, before the magistrate came to Clarke's, but I am quite sure he said so, when we were searching him up stairs; Mr Sadler and William Benson were present, and heard him make that confession besides myself.
JOHN COOKE
I am a farmer, and live at Erdington; I was at the dance at Tyburn- house on the night of the 26th of May last, and saw the prisoner there that night; Mary Ashford, the deceased, was also there; I saw her come into the room; when she came in, I heard the prisoner ask Mr Cottrell, who she was; Cottrell said, it is old Ashford's daughter. On Cottrell telling the prisoner that the deceased was old Ashford's daughter, I heard the prisoner say, 'I know a sister of her's, and have been connected with her three times, and I will with her, or I'll die by it;' I'm quite sure I heard the prisoner say those very words; the words were not spoken to me, but to Cottrell, although I was near enough to them to hear distinctly what was said; I stood close to them; I don't think anyone else heard the prisoner speak those words to Cottrell; but I stood near enough to them both, to hear what was said distinctly.
Cross-examined
I don't think anybody else was near enough to hear this conversation pass between the prisoner and Cottrell but myself; I did not remonstrate with Thornton on his making use of this expression. I was not examined at the Coroner's inquest; I can't tell how it was, I never was asked to go before the Coroner. I was at the house at the time, and should have gone, if I had been called for. I have heard that Cottrell denied that he ever heard the prisoner say what I have stated, and when I heard that, I went to the house at the Inquest, he never denied it to me.
Re-examined
I was at Tyburn-house, when the Inquest was held on the deceased, but did not hear that Cottrell was ever examined before the magistrate, or that be was examined before the Coroner. I mentioned the conversation that I heard pass between the prisoner and him, in the dancing room, to Cottrell; there were several other persons present at the time, and Cottrell did not deny it then.
DANIEL CLARKE
I keep Tyburn-house, where the dance was held on the night of the 26th of May last. In consequence of hearing of the misfortune that had happened to the deceased, I went to Castle Bromwich in search of the prisoner. I had heard of the body being taken out of the water before I went to look for the prisoner. I met the prisoner at Castle Bromwich, in the turnpike road, near the chapel, on a pony. I said to him, what is become of the young woman that went away with you from my house last night, and he made no answer. I then said, she is murdered, and thrown into a pit, and in reply to that, he said, 'Murdered!' I said, 'Yes, murdered!' The prisoner said, 'I was with her till four o'clock this morning.' I then said to him, you must go along with me and clear yourself. He said I can soon do that. We rode then towards my house, Tyburn-house, which is about a mile from Castle Bromwich; I had no conversation with the prisoner as we went along about the murder. We talked about things we saw, as we passed along. Amongst other things we talked about farming. I didn't say anything more to the prisoner, nor he to me, about the murder. When we got home, the prisoner put his pony into the stable, and said he would walk over the grounds, the footway to Sutton. He went into the house, and had something to eat and drink; he did not say anything more about going to Sutton that I heard, but stopped at my house, till the constable came and took him into custody.
Cross-examined
The prisoner and myself did not converse about the murder as we went along the road; I did not allude to the murder at all, after what passed between us at first, nor he either. I do not think the prisoner had heard of the murder of the deceased before I told him; and on my telling him, he immediately said, 'Murdered! why, I was with her till four o'clock.' I think he appeared a little confused when I first told him of the murder.
WILLIAM LAVELL
Was shewn the half boots, which he said were the same that were taken out of the bundle, that was found by the side of the pit. The judge examined the black stockings which the deceased had on, when she was taken out of the water. He said they seemed perfectly clean, except a spot or two which he thought he could just perceive on one of them; they were handed to the jury, who also examined them. The prisoner's shoes were also produced, and were minutely examined by the court, and afterwards by the jury.
GEORGE FREER
I am a surgeon, residing at Birmingham; I remember being sent for to attend the Coroner's Inquest at Penn's Mills, on the 27th of May last; another medical gentleman, Mr Horton, surgeon, of Sutton Coldfield, was there at the time; I arrived about half past seven in the evening, and just took a cursory view of the body then. It was placed in a very small dark room; I ordered it to be removed into another room, which was larger, and more convenient for the examination. While they were removing the body, I went to examine the pit where the body was found, and observed a quantity of blood, lying in various places near to the pit. When I returned, the body was removed into another room, and had been undressed; and the blood bad been washed from the upper surface of it; between the thighs and the lower parts of the, legs was a good deal of blood; the parts of generation were lacerated, and a quantity of coagulated blood was about those parts; but, as it was then nearly dark, I deferred the opening of the body until another day. On Thursday morning. I proceeded to open the body, and examine it more minutely: there was coagulated blood about the parts of generation, and she had her menses upon her. I opened the stomach, and found in it a portion of duck-weed, and about half a pint of thin fluid, chiefly water. In my judgment she died from drowning. There were two lacerations of the parts of generation, quite fresh; I was perfectly convinced, that, until those lacerations, the deceased was a virgin. The menses do not produce such blood as that. I had no doubt but the blood in the fields came from the lacerations I saw; those lacerations were certainly produced by a foreign body passing through the vagina; and the natural supposition is, that they proceeded from the sexual intercourse. There was nothing in them that could have caused death; there might have been laceration, though the intercourse had taken place by consent. Menstruation, I should think, could not have come on from the act of coition. I think it came on in an unexpected moment; and the exercise of dancing was likely to have accelerated the menses; there was an unusual quantity of blood. The deceased was a strong well-made girl, about five feet four inches in height.
The case for the prosecution here closed, and the learned judge addressed the prisoner, informing him that the period had now arrived for him to make his defence, and that the court and jury would listen with attention to anything be had to say. His counsel had done all they could for him in the cross-examination of the witnesses for the prosecution; they could not address the jury in his behalf. The prisoner declined saying anything in his defence, stating that he would leave every thing to his counsel, who accordingly proceeded to witnesses for
THE DEFENCE
WILLIAM JENNINGS
I am a milkman, and live at Birmingham. I was at Mr John Holden's, near Erdington, on the morning of the 27th of May last; I buy milk of him, and go there every morning to fetch it. I saw the prisoner at the bar, that morning coming down the lane, leading from Erdington, to Mr Holden's house, as if he came from Erdington, about half past four o'clock, as near as I could judge, having no watch. I do not know Mrs. Butler's, or Greensall's, or the workhouse, at Erdington; neither do I know Shipley's house; I'm not acquainted with the country. Having no watch, my wife, who was with me, asked at Mr Holden's, of Jane Heaton, the servant, what o'clock it was; she looked at the clock and told her. Before she inquired, and after I saw the prisoner, we had milked a cow apiece in the yard, which might occupy us about ten minutes. The cows were not in the yard then, they were a field's breadth from the house. I think this time, in all, took up about ten minutes. When I first saw the prisoner, he was walking very leisurely along the road; my wife saw him as well as myself.
Cross-examined
I was standing in the lane, within about thirty yards of Mr Holden's house, on the great road, when I first saw Thornton; I had been standing there about five minutes. The prisoner was within twenty yards of us, coming down the lane, between the canal bridge and Mr Holden's house, when I first saw him. I can't tell whether he came down the towing-path of the canal, or down the lane from towards Erdington; I did not see him till he was within twenty yards of me. I had been standing there about five minutes before I saw him.
MARTHA JENNINGS
I am the wife of the last witness. I was with my husband at Mr Holden's on the morning of the 27th of May last. While there I saw the prisoner pass; he was coining gently along. It was about half past four o'clock, as I inquired what time of the morning it was soon afterwards, of Jane Heaton, Mr Holden's servant. Between the time I saw the prisoner, and the time we began to milk, we waited some time for young Mr Holden, who was gone to fetch up the cows into the yard; and we had each milked a cow apiece, before I asked Jane Heaton the time of the morning. I think it must have been a quarter of an hour at least.
Cross-examined
I was standing in the road near Mr Holden's house, when I first saw the prisoner, much nearer to the house than to the canal bridge. I had been in this position about five minutes. We were looking at a cow that was running at a great rate down the lane; when she had passed us, we turned round to look after her, and then we saw the prisoner. As our backs were towards the prisoner, he might have come along the towing-path without our seeing him.
JANE HEATON
I live at Mr Holden's. I got up about half past four on the morning of the morning of the 27th of May last. From the room of my window, I can see the lane that leads from Erdington to Castle Bromwich; it is just by my master's house. When I was at the window, I saw a man walking along the road that leads by my master's house, from Erdington to Castle Bromwich. I think Thornton is the man. After I came down stairs, I saw Jennings and his wife: they came to ask what o'clock it was, and I looked at my master's clock to tell them; it wanted seventeen minutes to five. This was about a quarter of an hour after I saw the man pass my master's house. The clock was not altered for some time after I looked at it.
JOHN HOLDEN, Sen.
The last witness, Jane Heaton, is my servant. I was at home on the morning of the 27th of May. I don't know whether my dock at that time, was with the Birmingham clocks. I remember Mr Twamley coming to my house, on the Wednesday morning, to examine my clock: it did not want any alteration.
JOHN HOLDEN, Jun.
I am the son of the last witness, and live with my father. The family consists of my father, my mother, who was ill in bed, myself, and Jane Heaton, the servant. I remember going to the grounds on the morning of the 27th of May last, to fetch the cows up for Jennings and his wife to milk, but I don't know what time they came. I know the prisoner, Thornton, by sight. That morning I had been to fetch the cows, and as I came back I met him about two hundred yards from my father's house. He was going towards Castle Bromwich. I saw him pass the house, but do not know what time it was; it was early.
WILLIAM TWAMLEY
I live at Newhall-mill, near Sutton Coldfield, three miles from Castle Bromwich. I took an active part in investigating the cause of Mary Ashford's death. I was the cause of the prisoner being taken up. Mr Webster and me agreed to ascertain the state of the clocks. I went to Mr Holden's, and Mr Webster went to Castle Bromwich. I found Mr Holden's clock exactly with my own watch, as to time. I went from thence to Birmingham; my watch was just right with St. Martin's church, and it wanted a minute and a half of the Tower clock, there.
JOHN HAYDON
I am game-keeper to Mr Rotton, of Castle Bromwich. On the morning of the 27th of May last, I left my own house about ten minutes before five. I went to take up some nets which I had put down the night before, at the flood. As I passed Mr Zachariah Twamley's stables, at Bromwich, I heard Mr Rotton's stable clock strike five. It was about five minutes after that, before I saw the prisoner. He was coming towards Mr Twamley's mills, in the way from Erdington to Castle Bromwlch. I asked him where he had been. He said, to take a wench home. He stopped talking with me about ten minutes or a quarter of an hour; and then he went on towards Castle Bromwich, where he lived. From the spot where I first saw the prisoner, to Mr Holden's, is about half a mile, as near as I can guess.
JOHN WOODCOCK
I work at Mr Zachariah Twamley's mill: I am a miller. I saw a man talking with Haydon, Mr Rotton's game-keeper, at the flood-gates, on the morning of the 27th of May last, that I took to be the prisoner. From a calculation I have since made, it must have been about ten minutes past five.
Cross-examined
I know the prisoner very well; but I am not sure it was him that I saw with Haydon, at the flood-gates. I thought it was him. When I said that it was ten minutes past five o'clock by my calculation, I calculate thus: I went into the mill the first thing, and when I came out again, I heard Mr Rotton's stable clock strike five. I then went into a piece of wheat belonging to Mr Smallwood, and came back again. It must have been soon after five when I saw the prisoner come up to Haydon, at the flood-gates; for I have walked the ground over since, and it takes me just ten minutes, at a gentle pace.
JAMES WHITE
I remember seeing the prisoner on the morning of the 27th of May last, at Wheelwright's bank, where I was at work. It was then about twenty minutes past five, by Mr Wheelwright's clock. He was going towards his own home. I believe Mr Wheelwright's clock is about right with the Castle Bromwich town clock. The place where I saw the prisoner is about half a mile from his father's house, and about half a mile from Mr Twamley's mill.
After the Defence was concluded, a pause ensued, and an awful silence prevaded the court;
Then, Mr JUSTICE HOLROYD, taking a plan of the fields and neighbourhood in his hand, proceeded, in the most solemn manner, to deliver his charge to the jury, commenting on the evidence of the respective witnesses, in the most perspicuous manner and continually referring the jury in his comments on the evidence, to the plan; pointing out to them different roads and situations, as they were incidentally alluded to by the witnesses. His lordship concluded his elaborate address, with the following impressive sentences:
'This,' said he, 'is one of those mysterious transactions, in which justice cannot be done, but by comparing, most carefully, all the facts and circumstances of the case -- all the circumstances for, as well as those against, the accused.
'Before they could convict the prisoner, they must be fully satisfied that he was guilty of the murder. If any fair and reasonable doubt arose in their minds, as to his guilt, the prisoner was entitled to the benefit of those doubts. But, if they were convinced that the evidence was satisfactory, and that the crime was fully proved against the prisoner, they were, in justice, bound to pronounce him guilty. Yet, in coming to this conclusion, it was their duty well to consider, whether it was possible for the pursuit to have taken place, and all the circumstances connected with it, and for the prisoner to have reached Holden's house, a distance of nearly three miles and a half, in the very short space of time, which, if the statements of all the witnesses were correct, would have been allowed him.'
Finally, his lordship observed to the jury, 'that the whole of the evidence lay before them -- and by that evidence only they were to be guided in their decision. It were better 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;'
The learned judge having concluded his charge, the jury consulted for a few minutes, and then, to the utter astonishment of all who had taken an interest in this awful case, pronounced 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 stated, that they should decline offering evidence on this indictment, and the prisoner was accordingly discharged.
The court was crowded to excess, the trial occupied up wards of twelve hours and a half; the examination of witnesses on the part of the Crown engaged nearly eight hours and a half; -- the defence took up about two hours; -- and his lordship's charge to the jury about two hours more.
Thus ended, for the present, the proceedings on this moat brutal and ferocious violation and murder; but the public at large, and most particularly the inhabitants of the neighbourhood in which it had been committed, were far from concurring in the verdict of acquittal; and just, deep, and reverential, as is the natural feeling entertained by every Englishman for the solemn verdict of a jury of his country men, the present decision was canvassed with a freedom hitherto unknown, and the press in every part of the kingdom, teemed with strictures on the whole proceeding, which failed not to excite the most active inquiries as to every particular connected with the mysterious event.
The first fact discovered on this investigation, was that of Dale, the police-officer, having withheld from examination by the court during the trial, the breeches and linen of Thornton, which were in his possession, and which bore marks strongly corroborative of his guilt, -- and Hannah Cox was upbraided with having knowingly stated the time in correctly, with a view of favouring Thornton -- but the most important circumstance was the irreconcilability of the time as spoken to by the respective witnesses, founded on their opinions, as to the real time, and on references to crazy village clocks, not one of which was proved to be correct, or any of them in unison, but the whole of which were, like most country clocks, remarkable chiefly for their variation from true time, and from each other.
On the flimsy ground of data furnished by these miserable and discordant statements of time, was the alibi founded which effected the acquittal of Thornton; but so strong was the moral conviction of his guilt upon the public mind, that measurements of the ground were taken afresh, subscriptions to defray the expense of a new prosecution were entered into, and the evidence laid before the Secretary of State, who, upon an investigation of the whole affair, granted his warrant to the Sheriff of Warwick, to take Thornton into custody on an APPEAL of MURDER, to be prosecuted by William Ashford, the brother and heir-at-law of the deceased.
An APPEAL of MURDER is a very ancient, and now almost obsolete law, by which the nearest relative and heir-at-law of a person murdered, may demand a second trial of the party accused of the murder, in cases where, from a deficiency of evidence, or other cause, the prisoner may have been acquitted on the first trial, provided strong and reasonable ground of suspicion against the party accused still remains.
The person so appealed of murder, may, however, on his part, if so advised, claim the right of TRIAL by WAGER of BATTLE, which the appellant is bound by law to grant him in his own person.
Thornton was accordingly again arrested, and lodged in Warwick gaol, from whence he was removed by a writ of Habeas Corpus, as the proceedings on the Writ of Appeal were to be held in the Court of King's-bench, in Westminster-hall, London.
On Thursday, November 6th, William Ashford appeared in the Court of King's-bench as plaintiff appellant, and Messrs. Clarke, Gurney, Chitty, and Richardson, as his Counsel. MrClarke moved that the Sheriff for the county of Warwick be called in to make a return to the writ of Habeas Corpus, who accordingly appeared with Thornton, as his prisoner.
The counsel for Thornton, having stated that they had not had time sufficient to prepare for going into a case of such importance and novelty, begged to be allowed time to prepare for the discussion. The consideration of the case was accordingly fixed for the 17th of November, and the prisoner committed to the custody of the Marshal of the Marshalsea.
On the 17th, the Court again met, and the proceedings were resumed.
The prisoner Thornton, whom, it will be recollected, has been described as a strong athletic man, of extraordinary muscular power, had determined on availing himself of the barbarous privilege extended to him by the antiquated and absurd law under which he stood appealed, demanding TRIAL by WAGER of BATTLE, conscious of the decided advantage which his uncommon personal strength would give him over the dwarfish and delicate frame of the Appellant Ashford.
Accordingly, when, in the proceedings of this day, he was asked, in the form of the court, Prisoner, are you guilty or not guilty of the said felony and murder whereof you stand so appealed?
Mr Reader, one of his Counsel, put into Thornton's hand a slip of paper, from which he read, Not guilty; and I am ready to defend the same with my body.
Mr Reader likewise handed him a pair of large gauntlets, or gloves, one of which he put on, and the other, in pursuance of the old form, he threw down for the Appellant to take up. It was not taken up; and Mr Reader moved that it should be kept in the custody of the officer of the Court.
When the privilege of TRIAL by BATTLE is claimed by the Appellee, the judges have to consider whether, under all the circumstances, he is entitled to the exercise of such privilege; and his claim thereto having been admitted, they fix a day and place for the combat, which is conducted with the following solemnities:
A piece of ground is set out, of sixty feet square, enclosed with lists, and on one side a court erected for the judges of the Court of Common fleas, who attend there in their scarlet robes; and also a bar is prepared for the learned Sergeants at Law. When the Court is assembled, proclamation is made for the parties, who are 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 are bare headed and bare-footed, the Appellee with his head shaved, the Appellant as usual, but both dressed alike. The Appellee pleads Not Guilty, and throws down his glove, and declares he will defend the same by his body; the Appellant takes up the glove, and replies that he is 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, swears 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 any way 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 replies, holding the Bible and his antagonist's hand, in the same manner as the other: 'Hear this, O man, whom I hold by the band, 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, is taken by both the combatants, in this or a similar form. 'Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, ne 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 baffle is thus begun, and the combatants are bound to fight till the stars appear in the evening.
If the Appellee be so far vanquished that be cannot or will not fight any longer, be shall be adjudged to be hanged immediately: and then, as well as if he be killed in battle, Providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the Appellant, or can maintain the fight from sun-rising till the stars appear in the evening, he shall be acquitted. So also, if the appellant became recreant and pronounced the word "Craven," he lost his liberam legem, and became infamous; and the appelee 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.
Besides the folly which on the very face of this proceeding must be obvious to every reader, namely, that 'right should follow might,' there are other absurdities which must tend to make it equally unpalatable to an enlightened age. 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 this case, having removed it from the pages of the law-books by which our courts are governed.
Clerk of the Crown-office -- Prisoner, your plea is, that you are not guilty, and that you are ready to defend the said plea with your body?
Prisoner -- It is.
Lord Ellenborough -- Is the Appellant in Court?
Mr Clarke -- He is, my lord.
Lord Ellenborough -- Call him by name.
The Usher then called -- 'William Ashford, come into court.' The Appellant stood up in front of Mr Clarke.
Lord Ellenborough -- What have you got to say, Mr Clarke?
Mr Clarke -- My lord, I did not expect at this time of day, that this sort of demand would have been made. I must confess I am surprised that the charge against the prisoner should be put to issue in this way. The Trial by Battle is an obsolete practice, which has long since been out of use; and it would appear to me extraordinary indeed, if the person who has murdered the sister should, as the law exists in these enlightened times, be allowed to prove his innocence by murdering the brother also, or at least, by an attempt to do so.
Lord Ellenborough -- It is the law of England, Mr Clarke, we must not call it murder.
Mr Clarke -- I may have used too strong an expression, in saying murdering the brother; but at all events, it is no less than killing. I apprehend, however, that the course to be taken is, in a great measure, discretionary; and it will be for the court to determine, under all the circumstances, whether they will permit a Battle to be waged in this case or not. It is not entirely with the Appellee to decide what it shall be fit to do. The court will, no doubt, look to the person of the Appellant, and seeing that he is weak of body, as it is evident, and by no means capable of combating in battle with the Appellee, they will, perhaps, not permit the issue to be put upon personal contest.
A discussion then arose as to the authority for refusing the right of the Appellee to the Trial by Wager of Battle, and the further hearing of the case was postponed to the 22nd of November, in order to enable the Appellant to put in a counter-plea.
On the 22nd November, the case was again brought on in the Court of King's-bench, before the Lord Chief Justice, for the purpose of giving the Counsel for the Appellant an opportunity of putting in a counter-plea, or plea in bar, to the Appellee's demand of Trial by Battle.
The counter-plea was accordingly put in; it recited at very great length the circumstances of the violation and murder of the deceased, Mart Ashford, as deduced from the evidence already given at large in the account of the trial; and concluded by stating that the marks on the prisoner's linen, and other circumstances corroborative of his having been the violator and murderer, afforded presumption of guilt sufficiently violent to deprive him of the privilege of Trial by Wager of Battle, and the Appellant accordingly prayed the judgment of the Court against him.
To this counter-plea the Appellee's Counsel acknowledged themselves at that moment unprepared to reply, and after some discussion, it was finally agreed, with the consent of all parties, that the further proceedings, should, on account of the lateness of the term, be postponed till the second day of the following term; the court therefore ordered accordingly, and the prisoner was conveyed to the King's-bench prison, instead of the Marshalsea, as on the former days.
On the 23rd of January, 1818, term commenced, and on the 24th, the second day, pursuant to adjournment, the singular case was again brought before the judges. The business of this day embraced the consideration of the Appellee's Replication, or reply to the Appellant's counter-plea; this replication was a long, tedious, and wordy document, in which the Appellee replied, as well as he could, to the charges furnished in evidence on the trial, and recapitulated in the Appellant's counter-plea; and concluded by quoting the former trial and acquittal as a proof of his innocence, and finally demanding his right to Trial by Battle.
Time was allowed the Appellant's Counsel to answer this replication, which put off the proceedings till the following Thursday, January 29th, on which day the Appellant's answer was put in; this answer was a general demurrer, or joining of issue upon the point of law to be determined by the judges denying that the Appellee's replication was sufficient in point of law to compel him to answer, and praying that the Appellee might not be permitted to wage battle in the appeal; upon this, the prisoner put in a written paper, insisting that his replication was good in matter of law, and repeating his prayer to be allowed to wage battle with Appellant.
The case was again adjourned to the 6th of February, on which day Mr CHITTY, for the Appellant, contended in a learned, ingenious, and admirable speech, which occupied more than four hours in the delivery, that the replication to the counter-plea was insufficient, and that the defendant ought not to be admitted to wager battle, but submit to the constitutional trial of the charge by a jury of his countrymen.
On the following day, Mr TYNDAL, as Counsel for the Appellee, was heard in reply. In an elaborate and masterly speech he combatted the arguments of Mr Chitty, and finally submitted that, barbarous as was the practice of Wager of Battle, the defendant was fully entitled to the privilege, or that the appeal should be altogether discharged, and the defendant set at liberty.
The lateness of the hour at which Mr Tyndal concluded, not allowing sufficient time for Mr Chitty to reply to these observations, the case was again adjourned to the following term, and, on the 16th of April, was recommenced, when Mr Chitty again contended that the proofs against the defendant were sufficiently violent to deprive him of his Wager of Baffle, and ultimately left the case in the hands of the court to decide upon the point of law.
The learned judges, lord chief-justice Ellenborough, Mr justice Bayley, Mr justice Abbott, and Mr justice Holroyd, accordingly entered into a consultation, which lasted about a quarter of an hour, and then delivered their opinions seriatim; the substance of which opinions was, that sitting there, in their judicial capacities, to adminster the law, as they found it, and not as they wished it to be, they considered that nothing had been brought forward by the learned counsel for the Appellant, which they could consider calculated to oust the defendant from his right to claim Trial by Wager of Battle, and Lord Ellenborough accordingly proceeded to pronounce the decision of the court, -- 'That there be Trial by Battle, unless the Appellant shew reason why the defendant should not depart without day.'
Mr Gurney then, on the part of the Appellant, craved time to consider the propriety of applying for the judgment of the court upon this point, and at his request, time was given till the following Monday, the 20th April, 1818; on which day, he informed their lordships, that as the court had decreed the Appellee's right to Wager of Battle, he had nothing further to pray.
Mr Reader, for the defendant, then said, my lord, I submit the Appellant must be called; and that he must accept the Wager of Battle, or consent that the defendant be permitted to go free without day.
Lord Ellenborough -- Very well, let him be called.
Mr Gurney said, the Appellant did appear in court, though he did not pray anything, but left his case with their lordships, who he (Mr Gurney) understood had to consider whether any and what effect would attach to him for not praying judgment in consequence of any future proceeding on the part of the defendant.
Mr Richardson -- My lord, it cannot be considered that we abandon the appeal; the Appellant is in court, though he does not pray anything.
Mr Reader -- Mr Gurney; do you consent, on the part of the Appellant, that the defendant be discharged, and allowed to go free without day.
Mr Gurney - I do, on the part of the Appellant, give such consent.
Mr Reader -- Then I have only to pray the court that he be so discharged.
Mr justice Bayley -- I conceive the course now to be pursued is this. The Appellant prays nothing. The defendant, therefore, as far as the Appellant is concerned, goes free; but he must now be arraigned at the suit of the Crown; so that you will plead the trial and acquittal which has already taken place, but of which, upon the present proceedings, the Crown must be supposed ignorant, although it is a fact well known to the parties.
Lord Ellenborough -- This is a proceeding between individuals of which the court knows nothing. He must be arraigned at the suit of the Crown, to which he may plead the record of his former acquittal. The Attorney-General will, perhaps, give his assent to this plea.
The prisoner was then arraigned -- 'Prisoner at the bar, Abraham Thornton, hold up your hand. You, the prisoner at the bar, stand appealed by the name and description of Abraham Thornton, late of Castle Bromwich, in the county of Warwick, labourer, for that you, not having the fear of God before your eyes, but being moved and instigated by the devil, did, on the 27th of May, in the 57th year of the reign of his majesty, in the parish of Sutton Coldfield, in the county of Warwick, in and upon the body of Mary Ashford, make an assault, and her, the said Mary Ashford, throw into a certain pit of water, wherein she was suffocated and drowned,' -- how say you, are you guilty of the felony and murder charged on you by the said appeal, or not guilty?
Appellee -- Not Guilty.
Mr Reader put in a copy of the record of the trial and acquittal of his client on this charge, before Mr justice Holroyd, at Warwick, on the 8th of August last; and upon that record the learned counsel prayed their lordship's judgment, that the defendant might be discharged.
Lord Ellenborough -- Then the judgment of the court is -- That the defendant be discharged from this Appeal, and that he be allowed logo forth without bail.
Thus did the rigid application of the letter of the law, a second time snatch this guilty man from the punishment, which, even on his own admission of guilt, he had so fully incurred; but nothing could remove from the public mind the conviction of his atrocity, so deeply impressed by the very first narration of the dreadful tale, and which even his own conduct and gloomy broodings, after he was set at liberty, served to strengthen and confirm. A wretched outcast, shunned and dreaded by all who knew. him, and even his very name become an object of dread and terror in the neighbourhood of his family, he, a few months after his liberation, attempted to proceed to America, but the sailors of the vessel in which he was about to take his passage, refused to proceed to sea with such a character on board; disguising himself, he succeeded in a subsequent attempt in procuring a passage, and thus relieved this country from as large a load of moral crime as ever disgraced and oppressed it in the form of a human being.