Though the condition of all the parties was but humble, friends soon came forward with funds and good advice, so that within the year and a day which the law allowed, proceedings were taken in the name of William Ashford (Mary's brother, who, as next heir, according to the old law, had the sole power of pardon in such a case) for an "Appeal of Murder" against Abraham Thornton. What followed is here given in Mr. Toulmin Smith's own words:—"I have seen it stated, hot indignation colouring imagination, that here was a weak stripling nobly aroused to avenge the death of his sister, by tendering himself to do battle against the tall strong man who was charged with her murder. The facts, as they stand are truly striking enough; but this melodramatic spectacle does not form any true part of them." A writ of "Appeal of Murder" was soon issued. It bears the date of 1st October, 1817. Under that writ Thornton was again arrested by the Sheriff of Warwick. On the first day of Michaelmas Term, in the same year. William Ashford appeared in the Court of King's Bench at Westminster, as appellant, and Abraham Thornton, brought up on writ of habeas corpus, appeared as appellee. The charge of murder was formally made by the appellant; and time to plead to this charge was granted to the appellee until Monday, 16th November.—It must have been a strange and startling scene, on the morning of that Monday, 16th November, 1817, when Abraham Thornton stood at the bar of the Court of King's Bench in Westminster Hall; a scene which that ancient Hail bad not witnessed within the memory of any living man, but which must have then roused the attention of even its drowsiest haunter. "The appellee being brought into Court and placed at the bar" (I am quoting the original dry technical record of the transaction), "and the appellant being also in court, the count [charge] was again read over to him, and he [Thornton] was called upon to plead. He pleaded as follows:— 'Not Guilty; and I am ready to defend the same by my body.' And thereupon, taking his glove off, he threw it on the floor of the Court."
That is to say. Ashford having "appealed" Thornton of the murder. Thornton claimed the right to maintain his own innocence by "Trial of Battel;" and so his answer to the charge was a "Wager of Battel."
And now the din of fight seemed near, with the Court of King's Bench at Westminster for the arena, and the grave Judges of that Court for the umpires. But the case was destined to add but another illustration to what Cicero tells us of how, oftentimes, arms yield to argument, and the swordsman's looked-for laurel vanishes before the pleader's tongue. William Ashford, of course, acting under the advice of those who really promoted the appeal, declined to accept Thornton's wager of battel. Instead of accepting it, his counsel disputed the right of Thornton to wage his battel in this case; alleging, in a very long plea, that there were presumptions of guilt so strong as to deprive him of that right. Thornton answered this plea by another, in which all the facts that had been proved on the trial at Warwick were set forth at great length. And then the case was very elaborately argued, for three days, by two eminent and able counsel, one of whom will be well remembered by most readers as the late Chief-Justice Tindal. Tindal was Thornton's counsel. Of course I cannot go here into the argument. The result was, that, on 16th April, 1881, the full Court (Lord Ellenborough, and Justices Bayley, Abbott, and Holroyd) declared themselves unanimously of opinion that the appellee (Thornton) was entitled to wage his battel, no presumptions of guilt having been shown clear enough or strong enough to deprive him of that right. Upon this. Ashford, not having accepted the Wager of battel, the "appeal" was stayed, and Thorn-
