On the morning of Tuesday, 27 May 1817, George Jackson was walking to his labours beyond Penn Mills when he caught sight, hard by an old pit filled with water, of a bonnet, shoes, and a bundle of linen. One of the shoes was stained with blood. He hastened to summon aid; the depositions that followed recounted blood upon the grass and the body of Mary Ashford, a servant-maid of twenty years, drawn cold from the stagnant pool. On the previous eve, she had quitted a dancing-room in the company of Abraham Thornton. The humble effects left beside the pit were soon to become the silent instruments of a trial whose issue would astonish the kingdom.
Mary was in service with her uncle at Langley, near Erdington. On the Monday, she had repaired to the Birmingham market, bearing in a parcel a clean gown, a white spencer, and white stockings, purposing to shift her attire before the dance at Tyburn House. She met with Hannah Cox, at whose lodging she had paused before market hours. The two companions went together to the dance. Hannah departed first, between eleven and midnight; Mary presently joined her, escorted by Thornton, a bricklayer from Castle Bromwich, with whom she had stood up to dance. Benjamin Carter walked with them for a season. Presently Cox and Carter took another lane; Mary and Thornton went onward alone.
What transpired thereafter was known only through recollections gathered after the catastrophe. Hannah Cox testified that Mary returned to her dwelling before five in the morning, clad in the frock she had worn at the dance, composed and in no visible disorder. The young woman changed her attire, resumed her scarlet spencer and black stockings, yet retained her dancing shoes; she wrapped her half-boots in her kerchief and departed bearing her bundle. At several turns, country folk saw her walking briskly along the lanes leading from the Butler house toward Bell Lane. They saw no companion by her side.
The inquest turned its gaze upon the environs of the pit. Joseph Webster observed upon the grass the impression of a recumbent form, with marks he ascribed to knees and heavy shoon; drops of blood appeared to lead toward the margin of the water. William Lavell and Joseph Bird traced through the harrowed field certain prints which they deemed those of a man and a woman. By their reckoning, the footsteps converged, diverged, retraced their path near a dry pit, and thence descended toward the pond. Another series, imprinted by a man’s heel, traversed the field toward a gate. They laid the traces against Mary’s shoes and those of Thornton: the witnesses swore the dimensions matched with exactitude.
Yet this certainty had its boundaries. Hard by the dry pit, Lavell and Bird described strides that bore the semblance of flight; lower down, as they drew near the pond, the paces seemed shorter and the impressions less deep. Lavell stated he had sheltered two male prints and one female print beneath boards ere the rain fell. It was needful to weigh these moulds against the soil and the leather, yet their interpretation could not, of itself, establish the succession of deeds. Stains of blood had been found at various distances from the pit; no living eye had witnessed their shedding. The corpse bore contusions upon the arms and injuries which Mr. George Freer, the surgeon, deemed consistent with carnal knowledge; he concluded that Mary had perished by drowning. The question of force and that of death were thus entangled in a brief wherein material objects refused to yield their own chronology.
Thornton was apprehended. Before the magistrate, he gave an account of his ramble with Mary. Following this examination, Thomas Dale, the deputy constable, inspected his garments and found them spotted with blood. According to Dale, Thornton then acknowledged a carnal intimacy with the maiden—which he maintained was by her consent—yet wholly denied any part in her death. He recounted that they had walked through the closes and then parted; he affirmed he had left her near Erdington and had tarried to seek her about the workhouse ere bending his steps toward his father’s roof. He had set out in a dark coat, which he claimed to have shifted upon arriving home; he wore the same shoes, still damp from his passage through the dewy pastures.
At the assizes, several depositions were brought forward to sustain his reckoning of time. Witnesses had observed him upon the road to Holden’s farm about half after four, and again near the mill after five o'clock. None could fix his every movement to the exact minute: some carried no watch; others reported the hour from a house-clock whose accuracy was much disputed. The defence insisted upon his presence more than a mile from the fatal pit at the very season when other observers beheld Mary returning toward Bell Lane. Counsel sought not so much to decipher every trodden track as to oppose the distances and hours of the prosecution with the stubborn geography of an alibi.
The presumptive evidence weighed heavily against him: his departure with Mary after the dance, his own confession of an embrace, the blood upon his linen, the footprints which the searchers ascribed to his boots, and the rumour of an uncouth boast repeated at the bar. Yet the proof reposed entirely upon circumstance. No eye had seen Thornton thrust Mary into the pool; no man could stamp a precise minute upon each tread or stain. Mr. Justice Holroyd exhorted the gentlemen of the jury to dismiss all popular clamour, to weigh the testimonies, and to determine whether the hours urged for the alibi were true, mistaken, or fabricated. Following their deliberation, the jury pronounced Thornton not guilty.
The verdict restored Thornton to no ordinary life. Borrow recounts that upon his return to his father’s house, his former fellows shunned him, and clamorous multitudes reviled him whenever he showed his face in Birmingham. His father, accounted a respectable man, bore with his kin the grievous charges of the defence; on the other side, a public subscription had been raised to sustain the costs of an appeal. William Ashford, Mary’s brother, then instituted a fresh suit by virtue of an ancient private proceeding termed an “appeal of murder.” Thornton was taken once more into custody and brought to London. Standing at the bar of the Court of King’s Bench, he pleaded not guilty, and added that he was ready to defend his plea with his body. Thereupon he cast his leather gauntlet upon the floor before William Ashford: the gage of battle was a surviving right from an age when a cause might yet be submitted to the arbitrament of arms.
The arguments prolonged themselves over several days. Learned counsel debated whether a man once acquitted of felony might lawfully meet a private appeal by wager of battle. The weight of the violent presumptions of guilt entered the very heart of the dispute. Ashford maintained that the mass of evidence accumulated against Thornton was so overweening as to preclude him from this archaic shield; the judges weighed the antiquity of the common law against the legal virtue of an acquittal. In 1818, their Lordships ruled that Thornton was entitled by law to maintain his wager of battle. William Ashford declined the field. The combat did not take place, and the proceeding upon the appeal could go no further.
The abolition of the private appeal of murder, enacted by Parliament in 1819, closed forever the portal through which William Ashford had sought to obtain a second hearing. The glove cast upon the pavement of the court-house did not silence the dark misgivings of the parish; yet it brought an end to an ancient right that could still transmute a brother’s cry for justice into single combat.