into the absured old custom revived as a clever
checkmate to the iniquitous persecution of an
acquitted man. It was found that in Spelman's
time their had been a quashed case of the same
kind. In Monstrelet, a case was discovered in
which Brunecte, a gentleman of Hainault,
charged Soltier Bernaige, a gentleman of
Flanders, with murder. Brunecte overcame
his adversary, forced him to confess his crime,
and gave him over to the headsman. Then in
St. Palave's Mémoires sur l'Ancienne
Chevallerie they discovered the case of the Dog of
Montargis (since distinguished on the stage),
who in judicial combat forced the Chevalier
Macaire to confess the murder of his (the
dog's) master, the Chevalier Aubri de
Montdidier. Shakespeare's Henry the Sixth
furnished another instance—Dugdale, Bracton,
and Fleta all agreed that the following was
the form the trial should assume: If the
appellant took up the glove, the defendant
would lay his right hand on the Gospels,
and taking hold of the appellant's right hand
with his left, would swear that he did not
commit the murder. The appellant, with the same
formula, would assert the guilt of the
defendant, kissing the book as he repeated the
oath. The lists were to be sixty feet square,
the sides due north, south, east, and west.
Places were to be provided for the judges and
the bar. On the day fixed the court was to
proceed to the lists from Westminster Hall at
sunrise, the judges in their full robes. When
they were seated, proclamation would be made for
the combatants, who were then to appear with
bare heads, arms, and legs, each led by a
person carrying his bâton of an ell long and
tipped with horn, and preceded by another
carrying his square double-leather target. On
entering the lists, the combatants were to
make congés to the judges, and take the following
absurd oath against witchcraft and sorcery:

"Hear this, ye justices, that I,——, have
this day neither ate nor drunk, nor have upon
me bone, stone, nor grass, nor have done
anything, nor any other for me, whereby the law of
God may be depressed, and the law of the devil
exalted. So help me, God!"

Then, after a proclamation of silence, under
pain of imprisonment for a year and a day, the
combat was to begin, and to continue till either
party was vanquished or till the stars appeared
in the evening. If the appellant was defeated,
he would be subject to a year's imprisonment and
fine, and must make restitution as damages;
but if the appellant turned craven, and gave
up the fight, he became infamous, and lost
the privileges of a freeman. If the defendant
was defeated, he was to be instantly
executed—nor could even the king pardon him;
but. if he was victorious, or could maintain the
fight till the evening, he was to be honourably
acquitted.

There was also much serious and very angry
discussion as to whether Blackstone was right
in thinking that the wager of battle was
originally a Saxon substitute for the weregild,
or compensation money; or whether it was not
rather a substitute for the Norman trial by
combat.

On the 24th of January, 1818, the vexed case
was again tried. Thornton replied, stating all the
facts in his favour, and claiming a right to the
combat. On the 29th, it was again discussed;
and on February 7, Mr. Tyndall appeared for
the defendant. On April 10, Lord Ellenborough
gave the final decision. He said:

"The general law of the land is that there
shall be a trial by battle in cases of appeal,
unless the party brings himself within some of
the exceptions. The only exception relied on
in this case is the exception with reference to
the case in Bracton, which relates to a case so
clear as to exclude all doubt, and would not
admit of proof to the contrary, by means
whereof the party never could deny the fact
alleged. The discussion which has taken place
here, and the consideration which has been
given to the facts alleged, most conclusively
show that this is not a case that can admit of no
denial or proof to the contrary; under these
circumstances, however obnoxious I am myself
to the trial by battle, it is the mode of trial
which we, in our judicial character, are bound
to award. We are delivering the law as it is,
and not as we wish it to be, and therefore we
must pronounce our judgment, that the battle
must take place, unless the party reserves for
our consideration whether, under the
circumstances of the case, the defendant is entitled
to go without a day, which is a point for further
consideration; and on the part of the appellant
it shall be considered necessary to advise on
that point. At present we pronounce that there
be trial by battle, unless the appellant show
reason why the defendant should not depart
without a day."

On April 21, Ashford not having accepted the
wager of battle, the appeal was urged, and
Thornton was discharged. The crowd were so
threatening and turbulent, that he had to be
concealed in a private room until they
dispersed.

This was the last instance of trial by battle
being demanded in an English court. In the
following session, the rusty old act of parliament
under which the appeal was made, was
repealed. Wager of battle had only been snatched
up as a weapon of defence, exciting as great
astonishment in Thornton's adversaries as the
bows and arrows used by a Tartar regiment at
Austerlitz produced on the Grenadiers of
Napoleon. It is a pity that our statute-book should
still contain pages as mischievous and dead as
that page of whose removal we have given the
brief history.

Poor Mary Ashford's grave at Sutton
Coldfield is still a place of pilgrimage for holiday
visitors from Birmingham. The tombstone,
with the epitaph before given, was erected
by subscription. As for Thornton, who had
up to this time been respected at Erdington, he
went to America, where he followed his trade
of a bricklayer, married, had children, and died