Mary’s brother, William Ashford was to take the matter further. It is very likely that he was advised, encouraged and sponsored by one of the newspapers. At that time those found not guilty of a crime could not be tried a second time for the same offence.
However, after extensive research it was discovered that a medieval legal process known as an Appeal of Murder was still on the statute book. This could be undertaken by a relative of a murder victim when it could be shown that there was reasonable doubt regarding a jury’s decision.
Thornton Arrested Again
The case was taken to the Secretary of State who ordered the Sheriff of Warwick to arrest Abraham Thornton and send him to be prosecuted by William Ashford. The trial would take place before the Lord Chief Justice in the Court of the King’s Bench in Westminster Hall.
So great was the interest that a fund was set up allowing the public to donate subscriptions to defray the expense of the prosecution.
The Second Trial
The case was brought before Lord Justice Ellenborough in November 1817.
In the meantime Thornton’s team had also been carrying out their own research. The ancient Appeal of Murder was a two-edged sword. Under the old law an appeal of murder could be answered with a ‘Trial by Battle, which meant that Thornton and Ashford would fight man to man, hand to hand until the first stars appeared in the evening sky. If Thornton was then too weak to continue, he would be hanged there and then. But if he killed Ashford or stayed on his feet until after sunset, he would be acquitted.
The charge was read out and the clerk of the court asked Thornton, ‘Prisoner, are you guilty or not guilty of the said felony and murder whereof you stand so appealed?’
Thornton’s counsel, Mr William Reader gave him a piece of paper from which he read: ‘Not guilty; and I am ready to defend the same with my body.’
Thornton Throws Down The Gauntlet
Mr Reader gave him a pair of gauntlets; one he put on his hand, and the other he threw down for Ashford to pick up.
Ashford was asked for his reply. His counsel, Mr Clarke was completely thrown. He argued with the judge that this was an obsolete practice that had long fallen out of practise and had no place in a modern court of law. But the judge replied, ‘It is the law of England, Mr Clarke.’
So unusual were the circumstances of dealing with an ancient law which had not been applied since the Middle Ages, that the proceedings were postponed and were to continue on and off until April.
The long and short of it was that Abraham Thornton was a well-built, muscular and fit. He was a farmer’s son. William Ashford on the other hand was a weak and weedy individual and would have stood no chance in a battle of fisticuffs.
At the final hearing William Ashford refused to pick up the gauntlet and Lord Ellenborough declared that the defendant had no case to answer and that he was free to go.
Thornton Returns Home
Abraham Thornton returned to Castle Bromwich to his father’s farm at Shard End. However, such was the popular feeling against him that his life was made unbearable and he eventually emigrated to the United States where he later married and lived life quietly until his death in 1860.
As for poor Mary, she was buried in the churchyard at Holy Trinity in Sutton Coldfield, almost certainly having drowned by accident. She had most likely sat beside the pool to rest, perhaps to wash the mud off her feet and legs and slipped into the cold water where she met her end.
She was laid to rest under a tombstone paid for by public subscription with words composed by the rector of Sutton Coldfield who was convinced, as were most people, that the poor girl had been murdered. The tablet can still be seen in the graveyard by the entrance of the church, though the inscription is now too corroded to be read.
The Law Is Changed
As a result of this case the Lord Chancellor introduced a bill the following year to abolish Appeal of Murder and Trial by Battle. The act was passed by House of Lords with all three readings of the bill in a single night.
