From the start of the trial Thornton appeared to be unconcerned at his situation. He stood at the bar, in his smart black coat and yellow waistcoat, listening intently to the witnesses but completely deadpan, a picture of aloof confidence. Not a shadow of emotion or distress passed over his face.
Friday 8 August would be a long day for him, but longer for the observers of the trial, many of whom treated it more as a spectacle than a serious display of public justice. Crowds had started to assemble in the space in front of the Shire Hall as early as six o’clock and a crush had rapidly formed. By eight, when the High Sheriff, lawyers, jurymen and witnesses started to arrive, the javelin men, the liveried yeomen retained by the Sheriff to escort the judges of assize, struggled to keep people back to allow them into the vestibule.
All ranks were there, from the lowliest of labourers to the most respectable of gentlemen, among them James Amphlett from the Lichfield Gazette and a journalist from The Times, as well as John Cooper, a printer from Warwick, and numerous shorthand writers. There were no women. Talk of ripped and bloody frocks, lacerations, broken hymens and menses would be too much for their delicate sensibilities, and the authorities had decided that they should not be admitted.
Inside the cramped assize courtroom, Justice Holroyd ordered proceedings to start, and the clerk began to call and swear in the jury. These men were all of the middling sort: respectable farmers, drapers, steelworkers and yeomen, not much different from Abraham Thornton’s own father, in fact, who was himself a juryman in Castle Bromwich. Then the accused, who was referred to throughout the trial as the Prisoner, was brought up from the cells and placed at the bar facing the judge.
At nine, the gates outside were finally opened and the public streamed in to find seats in the gallery, where they could look down into the well of the court. We can speculate that Edward Holroyd, the judge’s 23-year-old barrister son, was guaranteed a seat or was accommodated on the floor of the court or even on the bench itself. He took copious notes and later claimed that his was the most accurate of the many published accounts that appeared afterwards.
Everyone had eyes only for Thornton, the alleged murderer. What did they see? The Times’s man thought he was monstrous — his ‘excessive corpulency has swollen his whole figure into a size that rather approaches to deformity,’ he wrote. Perhaps he was merely reflecting contemporary wisdom: evil was as evil looked, especially with the benefit of hindsight, or perhaps Thornton, deprived of the strenuous exercise that was part of his job as a bricklayer, had put on weight during his incarceration. Other journalists remarked that he was ‘repulsive’, while still others found him to be a ‘stout, well-looking young man’ with a fresh complexion. One thing they all agreed on; the Prisoner did not seem to be at all bothered by proceedings.
The trial was run by an array of Georgian gentlemen whose origins varied from the humble to the solidly middle class. This was a time of social mobility for clever, ambitious boys wanting to get on in the law profession — after all, the Lord Chancellor Lord Eldon was the grandson of a Newcastle water-carrier and broker of coals. The judge who heard the case, George Sowley Holroyd, was the son of a gentleman, but he had known adversity. His father lost a fortune and young George, unable to attend university as a result, was instead articled to a London attorney. He made a good fist of it, becoming a barrister on the Northern circuit and eventually a judge of the King’s Bench. As a younger man, he lived on the edge of the radical, or at least the reform, movements. He associated with the great law reformer Samuel Romilly, and his great claim to fame was to appear for the radical Sir Francis Burdett in his suit against Charles Abbott, Speaker of the House of Commons. Now fifty-eight, Holroyd had developed a calm, unruffled manner, and was praised for his clear legal arguments and remarkable memory but not particularly, according to the anonymous author of his obituary in The Gentleman’s Magazine, for his ‘store of wit’. What brains he had he managed well, and he studied hard, but he lacked ‘forensic abilities’.
William Bedford had selected some heavy hitters to prosecute the case. Nathaniel Gooding Clarke started life sixty-one years previously as the son of a Norfolk ironmonger. After Caius College, Cambridge, he was admitted to Lincoln’s Inn and called to the Bar, later becoming Recorder of Walsall and Chief Justice of Brecon and Carmarthen. At the time he prosecuted Abraham Thornton he was working as a senior counsel on the Midland Circuit. His colleague, 45-year-old serjeant-at-law John Copley, had an unusual background for a lawyer. Born in Boston, Massachusetts, he was the son of John Singleton Copley, the famous American painter of colonial celebrities. Alfred Thrale Perkins, aged thirty-six, was the junior.
Edward Sadler had chosen two exceptionally astute lawyers to face down the prosecution, both of them, like Clarke, stalwarts of the Midlands Circuit. William Reader, the son of a Coventry wool merchant, had once nursed radical ideas — in his thirties he was a member of the Society for Constitutional Information, which was suppressed by the government for campaigning for parliamentary reform and promoting Thomas Paine’s Rights of Man which, to the alarm of the authorities, advocated democratic republicanism — but now, aged fifty-eight, he had settled into a solid conservatism. His mental agility was undiminished, however, and he was known for the extraordinary energy he brought to his twin jobs as a barrister for hire and Recorder of Coventry. Alongside Reader stood 42-year-old Henry Revell Reynolds, whose many years’ experience in the criminal courts in London and on the Midlands Circuit, brought him a reputation as cool-headed and professional.
For centuries, the purpose of the trial had been to allow the accused personally to answer the charges against him. It was essentially a controlled altercation; a direct confrontation between the victim (the prosecutor) and the defendant. While it was the defendant’s opportunity to speak and explain, it was part of the judge’s remit to protect the defendant from incriminating himself. The practice of employing defence counsel was slow to grow. From 1696, they were permitted to appear in treason trials and from the 1730s they could do so in felony trials but it took another fifty years for their use to became regarded as unremarkable. Their services were not free and the state was under no obligation to provide them.
The presence of defenders in court contributed to a shift of focus; by the early nineteenth century, the trial was more of an opportunity for the defence to test the strength of the prosecution case than for the defendant to explain himself. Put another way, as the lawyer became the mouthpiece of the defendant, the defendant retreated into silence. Indeed, often the advice of counsel was to say nothing at all, not even in the form of a defence statement, in effect to ‘go no comment’.
Thornton’s parents paid for his defence and used up their cash reserves to do so. They were lucky to be able to support their son. Those without access to credit but in possession of a little cash might be able to engage a jobbing lawyer to prepare a written defence, to be read out by the judge in court, but the poorest, unable to afford even that, had to rely on their own abilities and act as their own barristers. They could challenge witnesses and were entitled to speak at the end of the trial but in reality, most were too overwhelmed to do anything more than simply deny the charge. Poor William Stokes, the utterer of false banknotes tried at Warwick, was convicted on the word of one of his customers and was able only to state that this person had induced him to commit the crime. When Isaac Brindley, who was accused of murdering Ann Smith (and whose corduroy breeches had made an impression in the mud and in the minds of Lavell and Bird), was called on to make a defence, he replied ‘I know nothing of it.’ Both Stokes and Brindley went to the gallows.
Thornton was indicted first for the murder of Mary Ashford, to which he pleaded not guilty; the rape charge would be heard after the first case was heard. In his opening address, Nathaniel Gooding Clarke described the murder as ‘of the highest enormity… one of the greatest offences that human nature is capable of committing — that of shedding human blood — the innocent blood of a fellow creature’ and Mary as ‘of unblemished character’, the child of ‘poor but very honest parents’. He summarised the events and emphasised the extreme violence done to Mary but glided over the difficult issue of the timings.
Nearly all the witnesses for the prosecution had previously appeared at the inquest, and the evidence they gave at Warwick was, in the main, the same. Hannah Cox was the first to stand in the witness box. Under questioning by Serjeant Copley, she told the court about Mary’s movements on Whit Monday when she arrived at Mr Machin’s in her pink frock, red spencer, black stockings and half-boots; Mary was going to Birmingham market and asked her to pick up the new white shoes from the Erdington shoemaker. Then they had crossed the road to Hannah’s mother Mrs Butler’s, where she left her party clothes: the white dress, white spencer and white stockings. At six she returned, called on Hannah at Mr Machin’s, and afterwards they got ready for the party at Mrs Butler’s and walked over to Tyburn House. Hannah said she spent only fifteen minutes in the dancing room and between eleven and twelve o’clock came to tell Mary it was time to go, and that she would wait for her on the bridge thirty yards from the inn. Benjamin Carter was with her, and when Mary did not appear, she sent him in to hurry her up. A few minutes later Mary emerged with Abraham Thornton and the four of them set off down the Chester Road. Thornton and Mary went on ahead, Benjamin Carter and Hannah following, until Carter turned back to the Tyburn. Hannah walked with the others and, shortly after Carter caught up with them, went alone down a road leading to Erdington. A few hours later, Mary woke her by calling up at the window, and she got out of bed to let her in. By her mother’s clock it was 4.40am:
Q: (John Singleton Copley, for the prosecution) Did you perceive any agitation or confusion in the person of the deceased?
A: No.
Q: Neither her person nor her dress were disordered?
A: Not that I saw.
Q: The deceased appeared very calm and in very good spirits?
A: Yes.
Mary changed her clothes in front of Hannah, pulling off her white stockings while standing and chatting, and tied everything up in a handkerchief along with her purchases from Birmingham market. She wrapped her boots in another handkerchief and kept her white shoes on. She said nothing to Hannah about starting her period.
Now it was the turn of the defence. Defence counsel were limited in their powers. They could only cross-examine on matters of fact and until 1898 the defendant could not give sworn evidence under oath. William Reader asked about what Mary had told Hannah about where she had been since they parted on the Chester Road:
Q: When the deceased came and called you up in the morning, where did she say she had been?
A: She told me she had slept at her grandfather’s.
Q: Did you say anything to the deceased, when she had called you up, about the prisoner?
A: I asked her how long Mr Thornton stopped, and she said a good bit.
Q: Did you say anything else to her about the prisoner?
A: I asked her what had become of him.
Q: What answer did she make?
A: She said he was gone home.
In reality, Mary had neither spent the small hours with her grandfather nor stopped there on the way home to Langley Heath. She had lied. Reader’s aim was to chip away at Mary’s reputation for ‘honesty’.
Apart from stating that he had seen Mary dancing with Thornton at the Tyburn, Benjamin Carter merely corroborated Hannah’s story about walking down the Chester Road. It was the account given by the next witness, John Humpage, who was the last person to see Thornton and Mary together, that had most impact and also proved to be the most confusing. Humpage said that at around two o’clock, while he was inside the cottage next to Lavell’s, he heard people talking outside in Penns Mill Lane. This was a variation on the story he gave at the inquest when he said he was on his way home and saw a woman’s light-coloured dress through the hedge while he was in the Lane. Either way, his evidence suggested that early in the morning Mary and Thornton had been in the fields behind Penns Lane before he came across them at around 3.15 at the stile. As he passed, he was greeted by Thornton but Mary held her head down. Reynolds’ first focus in cross-examination was the distance between the house Humpage had been visiting and the pit. Humpage said it was a hundred yards (it was actually more like two to three hundred). Without saying so, he was exploring the issue of rape. If Thornton had raped Mary at this time, why did she did not scream — Humpage would surely have heard her — or, if she was being maltreated by Thornton why she did not appeal to Humpage for help as he walked by?
Thereafter a series of witnesses described seeing Mary walking down towards Erdington or coming away from it. Thomas Asprey saw her at half-past three near Greensall’s just south of the junction with Holly Lane as she walked speedily and alone in the direction of Mrs Butler’s house.
Q: (John Singleton Copley) Did you see any other person about there?
A: No.
Q: How wide is Bell Lane there?
A: About twenty-one yards.
Q: Is it straight?
A: Yes, for a considerable distance.
If Thornton was lurking, he was not seen.
John Kesterton, a teamster for Thomas Greensall, had taken some horses up to the horsepit on Bell Lane, turned them round in the road and was coming back through Erdington when he saw Mary emerge from Mrs Butler’s at 4.15. He cracked his whip to attract her attention and she looked up towards him. He noticed that she seemed to be in a hurry. The road was very broad at that point and, like Asprey, he saw no one else about. Joseph Dawson saw Mary a moment later, and asked her how she was. He noticed her straw bonnet and red spencer and the fact that she was walking very fast. She was alone. Thomas Broadhurst saw her a few minutes later at the junction of Bell Lane and the Chester Road and also noted that she was walking fast. After this George Jackson described finding Mary’s bonnet, bundle and shoes by the pit, going to fetch William Lavell and afterwards coming across the blood. From the pit to the footpath he saw a zig-zag of blood, two yards in length, and the lake of blood by the side of a bush, with more to the left.
The evidence of William Lavell was the cornerstone of the prosecution case. His tracking and interpretation of the footmarks in the ploughed field would prove that Thornton had chased and subdued Mary, and the person-shaped impression in the dewy grass under the tree by the footpath would prove the attack. However, rather than letting this quiet, intelligent man describe his findings at length, Clarke fired short, closed questions at him, eliciting short, closed answers. Confusing to the reader now, they must have been almost bewildering to the jury in court.
Despite this, Lavell managed to tell the court that he had traced the footsteps of the man and woman dodging on and off the footpath just before it turned into the harrowed field, then running up the side towards the dry pit. After the man and woman turned right at the top of the field going towards the fatal pit, the impressions in the ground indicated that they were sometimes walking, sometimes dodging and sometimes running. After they passed the first marl pit on the left, the woman’s footsteps were found no longer and she did not come back that way. From there to the stile Lavell could find only the man’s footsteps. He discovered a second trail of footmarks, of the man only, going back across the top of the field towards the dry pit and then diverting across the field to the bottom right-hand corner, an exit leading to Pipe Hall and on towards the Chester Road. It was a shortcut across private land but from the Chester Road a person could easily reach the canal towpath and get down to Holden’s farm.
Clarke asked about the comparison of Thornton’s shoes to the footmarks. Lavell said he had compared a dozen impressions in three different locations. He had ‘no doubt at all’ that they were an exact match.
Q: Had those shoes, either of them, any particular nail?
A: There was a sparrow-nail.
Q: Was there any at the toe of either shoe?
A: There is not on one side.
Q: Which shoe?
A: The right.
Q: Were there any marks of this sparrow-nail on those [footmarks] that you covered [with the boards]?
A: There was one step trod on a short stick which throwed [sic] the foot up, and there were the marks of two nails.
He and Bird had also compared Mary’s shoes, and found that they corresponded with the smaller footprints. For a reason he did not explain, or which was not recorded by the shorthand writers, he did not fit Thornton’s shoe into the single footmark by the pit.
There was detailed questioning about the ‘lake of blood’ and the trail of blood leading to the pit, which Lavell described as running straight up towards the pit across the path and then about a foot from the path, on the clover. There were no footsteps near the blood. Was it a track or a few drops? asked Clarke. ‘It came in drops at last, but it was a regular run where it first came on the clover,’ replied Lavell.
Up to this point the defence’s questioning had been routine, even desultory, as if the Reader and Reynolds were merely going through the motions. They had been holding fire for Lavell and Bird. Reader cross-examined, questioning Lavell about the distance from the pit to his house and about the rain that had fallen in the middle of the morning. In his brief for the barristers, Sadler wrote that before Thornton’s and Mary’s shoes were tested there had been a violent thunderstorm, ‘the severest… we have had this summer’, that only two footmarks were covered on the harrowed ground, neither of them the woman’s. He suggested that many of the footmarks in the field were Lavell and Bird’s own or were made by the crowds of villagers who had gathered in the field once the word got out.
Q: There were a great many people collected in the ploughed field, were there not?
A: At one time after another; but not then.
Q: Do you think there were more than one thousand footsteps then.
A: Not then.
Q: Were there not a great many other footsteps beside the steps you had traced in the morning?
A: Yes, there were a great many.
Q: Some thousands perhaps.
A: I won’t say thousands.
Q: Were there not a great number of footmarks of other persons?
A: Yes.
Lavell was forced to admit that he did not try Thornton’s shoes with the marks he supposed that other people had made. His seemingly careful analysis had failed to spot that, sparrow-nails apart, Thornton’s shoes may have fitted into almost any other male footmark. Reader tried a series of tacks, flitting from one matter to another in a deliberate attempt to disconcert Lavell, first asking him about the blood, then the single footmark, then the footsteps across the harrowed field and the route to Castle Bromwich, then the blood again and finally the single footmark once more.
Joseph Bird was also examined on the footprints. His stolid and detailed replies to John Copley’s questioning entirely corroborated Lavell’s account. The man was on the right of the woman, he said, and in places they had been running.
Q: What makes you think that the persons had been running?
A: By the length of the stride, and by the little scrape at the toe of the woman’s shoe. The heels of the man’s shoe sunk very deep, as if made by a heavy man.
Bird described in detail how he had compared the man’s footsteps with Thornton’s shoe.
‘I kneeled down and blew the dirt out of the right footstep to see if there were any nail marks. There lay a bit of rotten wood across the footstep, which had turned the outside of the shoe a little up, and the impression on that side of the foot was not so deep as the other. I observed two nail marks on that side where it was shallowest. The shoes were nailed and there was a space of about two inches where the nails were out, and they were nailed again…I marked the first nail on the side of the shoe, and then kneeled down to see if they exactly corresponded, and they did exactly. I could see the second nail mark at the same time, as well as under the shoe and they fitted every part exactly.’
He did the same with the woman’s footmarks and Mary’s white shoes.
‘Where the running over the ground was, there was a dent or scraping in the ground, and by looking at the shoes, the leather of one shoe was raised at the toe more than the other, from being wet. The shoes were not alike, and the impressions varied accordingly, agreeing with the form of each shoe.’
Copley asked Bird about the route that seemed to have been taken by the man across the harrowed field. There is no regular footpath there, he said, and described how someone might get to the bridge across the Birmingham and Fazeley Canal south of Tyburn by following a road ‘near Samuel Smith’s house, which is used by market people.’ Anybody might use it to reach Holden’s farm.
Henry Reynolds cross-examined him. ‘Men walk in many different ways, don’t they,’ he said. ‘Some upright, some rather on their heels, some leaning forwards upon their toes, some take long steps and some short ones?’ Bird agreed. ‘And some take quite as long strides when they walk, as when they run?’ continued Reynolds. ‘I never saw a man take longer steps in walking than he did in running,’ shot back Bird. Reynolds changed the subject, now addressing the thunderstorm that had fallen that morning. Bird said it had rained ‘sharpish’ but there had been no thunderstorm. What about the people in the field? How many were there? A hundred perhaps? ‘No,’ said Bird. Thirty or forty, and Mr Bedford, who had arrived between nine and ten o’clock, when there were only twenty people there, had ordered them to stay away from the footmarks.
After James Simmons described using a heel rake and reins to retrieve Mary’s body and the state of the body (‘There was a little mud and some old oak leaves on the face’) it was the turn of Joseph Webster. He told the court that he came to the pit soon after he was alerted that a woman had drowned in it, witnessed the body being taken out of the water and ordered his men to take it to Lavell’s cottage. By the tree he saw what he described as ‘a considerable quantity of blood’ which ‘lay in a round space, and was as large as I could cover with my extended hand.’ It was ‘much coagulated’. He also saw the impression of a ‘human figure on the grass’ with arms and legs ‘stretched out their full length’ and a small quantity of blood at the centre. He saw the marks of the toes of a man’s large shoes at the bottom of the figure and he traced the blood for ten yards up by the side of the path towards the pit. Joseph Bird showed him the footmarks in the harrowed field, after which he sent for Mary’s shoes. One of the shoes was bloodstained on both inside and out. The shoes were produced and passed to the jury and then up to the Judge. The stain on the inside was clearly seen but that on the outside, as you might expect with leather shoes, had faded. Webster also described the ‘marks from the grasp of a man’s hand’ he had seen on Mary’s arms after the spencer was taken off and blood on the seat of the pink gown. ‘It was in a very dirty state. There was blood also on other parts of the gown,’ he said. Later he had gone to see Hannah Cox and measured the accuracy of her mother’s clock which he found to be forty-one minutes fast.
Fanny Lavell was the first female to give evidence, a lone woman in an overwhelmingly male environment. She had to talk about matters that were generally only women’s business, but she was a capable, down-to-earth person, and she did not hesitate. She told the court that she had undressed Mary’s body and had had to tear off some of her clothes. ‘The gown she had on was very dirty — blood and dirt,’ she said, but she could not see blood on the black stockings. As at the inquest, Thomas Dales then produced the pink dress, and the court saw that the seat was stained with blood and dirt, just as Fanny had said. The white undershift was the same. The white party clothes were also produced. The dress had blood on the back of the skirt but the white spencer was clean. There were spots of blood on the white stockings.
Mary Smith, who had helped Fanny, was called next and mentioned the black marks on Mary’s arms. When she examined the lower parts of the body, she said, she found it in ‘a very bloody state’ but could not tell whether it was from ‘a monthly evacuation or blood from violence.’ She thought that the body was not yet cold.
It was late afternoon by now. At some point Thornton requested refreshment and we can speculate that this was a convenient point to break, before Mr Bedford was questioned. There was no awkward cross-examination this time, no Sadler to needle him on inaccuracies or changes to the statement. He simply said that the Prisoner made a deposition, after which an officer of the court read it out (a version is given on page 132).
It was the performance of Thomas Dales, the assistant constable, who appeared next, that was to prove the most controversial of the whole trial. He seemed to have suffered a lapse of memory about events after he took Thornton into custody at Tyburn House.
Q: (John Singleton Copley) [Before Mr Bedford arrived] what did you say to him [Thornton]?
A: I don’t recollect — nothing in particular… I just don’t remember. We were all talking together for some time. I told him he was my prisoner.
Q: Nothing in particular — you say you had some conversation with him. What did you say to him?
A: I just don’t remember. We were all talking together for some time. I told him he was my prisoner.
He even seemed reluctant to identify those who came upstairs with him when he examined Thornton’s clothing.
Q: Who went — anybody but you and the prisoner?
A: The Prisoner, myself and William Bedson.
Q: Anybody else? Did nobody go up with you into the room?
A: Yes, Mr Sadler went into the room with us.
He told the court that Thornton’s breeches and shirt were both ‘very much stained’, and that he had offered an explanation: ‘He said he had been concerned with the girl, by her own consent, but he knew nothing about the murder.’ Later, when Copley pressed him again on what he and the prisoner had talked about in the hour or so before Mr Bedford arrived, he said again: ‘Nothing in particular, I remember he said, when he was before Mr Bedford…’ at which point he was cut off by Mr Reynolds for the defence, who objected that no oral addition to Thornton’s written statement should be accepted. Dales’s account of what was said during Thornton’s interview with Mr Bedford was ruled irrelevant. The judge agreed, and after a discussion Judge Holroyd decided, for reasons that were not shared, that Thornton’s clothes should not be put into evidence.
Now it was the turn of William Reader to cross-examine Dales on Thornton’s admission of a ‘connection’ with Mary. Did Thornton confess to this before he was taken in front of Bedford to be examined? Dales seemed unsure.
A: Yes, he did. I believe he did.
Q: Did anyone hear it, besides yourself?
A: I can hardly tell. I think not. I don’t recollect that anybody was present at that time.
Q: Did you tell Mr Bedford what the Prisoner had said, before he examined him?
A: No, I believe not.
In the courtroom, William Bedford must have been both dismayed and angry. To his mind, the assistant constable, about whom he already had doubts, had jeopardised the whole case. There was more confusion when Copley re-examined Dales.
Q: Did the Prisoner tell you that he had connection with the deceased before the magistrate came to Clarke’s [Tyburn House]?
A: I’m not quite sure whether he said so before or after.
Q: You are sure he did say so to you, are you?
A: I’m sure he said so, when we were searching him upstairs.
Q: You are quite sure of that?
A: Yes.
Q: Who heard him make that confession besides yourself?
A: Mr Sadler and William Bedson were present.
Before the trial, while they were drinking in a pub, Joseph Cotterill had told Mary Ashford’s father Thomas that Thornton had had his eye on her the minute she arrived at the dance. Cotterill himself either refused to appear as a witness or made himself so hard to find that a subpoena could not be served. It was a serious loss as his evidence would have established a motive for Thornton’s attack. Bedford had managed to get the next best thing: John Cooke, a young Erdington farmer who had been at Tyburn House and overheard the conversation between Thornton and Cotterill. Clarke tried to make sure that that his story was credible.
Q: You were near enough to them [Cotterill and Thornton] to hear distinctly what was said?
A: Yes, I stood close to them.
Q: Did anyone else hear the prisoner speak those words to Cotterill?
A: No, I don’t think they did.
Q: But you stood near enough to them both, to hear what was said distinctly?
A: Yes.
Reynolds, for the defence, responded with sarcasm, seeking to destroy Cooke as a reliable and respectable witness: ‘Of course, you remonstrated with Thornton, on his making use of this expression, didn’t you… Then you went immediately and told Mary Ashford what you had heard.’ Thornton’s alleged words were a ‘dreadful threat’, said Reynolds, assuming, or at least pretending to, that Cooke was bound by the social rules of Reynolds’s own middle-class life. It is more likely that Cooke, who knew the Ashfords as neighbours, would merely have shrugged off this conversation, assuming that Mary could and would make up her own mind about Thornton and his intentions.
Daniel Clarke, the keeper of Tyburn House, told the court that after Twamley turned up at the inn enquiring about who Mary had left the previous night’s party with, he had offered to go and find Thornton and came across him a mile down the road near the chapel in Castle Bromwich, riding a pony. Copley asked him what he had said to Thornton.
A: I said to him, what is become of the young woman that went away with you from my house last night?
Q: What reply did he make?
A: He made no answer.
Q: What did you say then?
A: I said, she has been murdered and thrown into a pit.
Q: Did the prisoner make any reply to that?
A: He said ‘Murdered!’. I said, ‘Yes, murdered.’
Q: What answer did the Prisoner make?
A: The Prisoner said, ‘I was with her till four o’clock this morning.’
Clarke told him that he must come to Tyburn to clear himself and Thornton replied that he could ‘soon do that’ so they rode towards the inn.
Q: What then did you talk about?
A: Things as we saw, as we passed along.
Q: What things?
A: We talked about farming.
Reader asked Clarke to speculate on whether Thornton had already known about Mary’s death. ‘No, I don’t think he had,’ said Clarke. Thornton had volunteered the information that he had been with Mary ‘without any consideration’? Yes indeed. Judge Holroyd jumped in here and asked whether Thornton had appeared confused at the news. ‘Yes I think he appeared a little confused.’ ‘Persons in general, labouring under any very great distress of mind, are not inclined to talk much, are they?’ suggested Reader and Clarke agreed.
Daniel Clarke’s evidence was perfect for the defence. He had painted a picture of Thornton as a sober, thoughtful and truthful young man, who had voluntarily given information about Mary. Most members of the court would be of the opinion that Thornton’s behaviour to Mary was to be regretted, but it was perfectly understandable, given that the girl was willing. He was a normal young man with normal urges. Who among them would not have done the same?
More items were shown in evidence. William Lavell was recalled to identify Mary’s half-boots which were found in the bundle by the pit, and the black stockings she was wearing when she was pulled out of the water. These were handed around to the judge and jury, as were Thornton’s shoes. The judge said the stockings seemed perfectly clean except for one or two spots which he thought he could just perceive on one of them. The courtroom must have been perplexed, but rapidly coming to a conclusion. If the white stockings were bloodstained and the black stockings were not, how could this be reconciled with the prosecution’s case? The blood on the white ones must be hymen blood, proving that the sex with Thornton was consensual. On the other hand, if she had sex while wearing the white frock why was it less bloody than the pink one, which she was wearing when she was pulled out of the pit? Perhaps that blood was menstrual and nothing to do with the sexual intercourse.
The prosecution case was drawing to a close. The final witness, the surgeon George Freer, described going with his colleague Richard Horton to see Mary’s body at the Lavells’ cottage, asking for it to be moved to a better location, and then visiting the scene, where he saw ‘a quantity of blood lying in various places near the pit’. When the surgeons returned on Thursday to perform the post-mortem, the upper surface of Mary’s body had been washed but between the thighs and the lower parts of the legs, there was a great deal of blood. He told the court that there were lacerations on the vagina as well as coagulated blood. He opened the body and confirmed that Mary had been menstruating, and from the fluid in her stomach concluded that the cause of death was drowning. In his opinion, the blood in the field was from the lacerations but those injuries were not serious enough to cause her death. As for Mary’s monthly flow it had probably been brought on earlier than she had expected (hence the lack of cloth) and it had not resulted from sexual intercourse.
There was a marked contrast in the way Clarke asked questions of Freer to his questioning of Lavell, Bird, Nathaniel Gooding and the other working-class witnesses. ‘Be good enough to describe to us the state in which you found the body,’ he said, and later, ‘In your judgment, what was the cause of the deceased’s death?’ Freer spoke expansively each time, explaining his findings without interruption.
The defence team did not cross-examine Freer and here the prosecution case closed. Before the defence began, two maps were presented, one prepared for the prosecution by the Erdington surveyor William Fowler and the other, for the defence, by Henry Jacobs of Birmingham, who said he had measured the distances with a chain and was satisfied that they were perfectly correct.