Ashford v Thornton: The Last Challenge to Trial by Battle

Feb 18, 2022 0 comments

Many personal disputes in the past have been settled by one-to-one combat. When a crime was committed, or a complainant accused a person of a crime and there were no witnesses or a confession, the court allowed the two parties to legally settle their difference with a duel. The winner of the fight was proclaimed to be right. This archaic law remained in use throughout the European Middle Ages, gradually falling out of favor in the course of the 16th century. The medieval method of trial by battle was almost forgotten, until Abraham Thornton, who was accused of rape and murder, tried to invoke it more than two hundreds years after the last judicial battle took place.

A trial by combat taking place in Augsburg in 1409, between Marshal Wilhelm von Dornsberg and Theodor Haschenacker.

The Ashford v Thornton became a landmark case and a topic of discussion “not only in the cottage, but in the drawing room, among companies consisting of both sexes”, wrote Revered Luke Booker. “There has probably been no case in criminal records of this country, during the present century, that has attracted so universally the public attention,” claimed a British historian. The details of the case are as follows:

On 26 May 1817, Mary Ashford, a 20-year-old general servant and housekeeper, attended a dance at the Tyburn House in Warwickshire. Also in attendance was 24 years old Abraham Thornton, the son of a builder from Castle Bromwich. During his trial, various witness described him as a “well-looking young fellow”. Others found him to be “of repulsive appearance”. Throughout the evening, Thornton showered Mary with attention, and she also appeared to enjoy his company. During this time, someone overheard Thornton using “gross and obscene language”, and boasting that he had been intimate with her sister many times, and would also be intimate with Mary.

Around midnight, Mary was seen leaving with Thornton, accompanied by her friend Hannah Cox, who walked behind them. Instead of returning to Erdington, where she lived, Mary announced that she would go to her grandfather's house, which was closer to work, and Hannah and Mary parted ways. Just before 4 AM, Hannah was awakened by Mary who had come to collect her work clothes. Mary changed and hurried off, stating she needed to be home before her uncle left for market. She was last seen alive, walking towards her home, by a reveler returning from Tyburn House.

At around 6 AM in the morning, her body was discovered in a water-filled pit. Police found a series of footprints on showing that a man and a woman had travelled together almost up to the pit, and that the man returned alone. Examination of the cadaver revealed that Mary had been violated.

Thornton was immediately arrested, but he denied the accusation. The footprint of his shoes was taken and they matched those in the crime scene. Searching about his body revealed bloodstains in his underclothing. Mary was menstruating at the time of her rape and death. Thornton admitted having sex with Mary, but that it was consensual.

Although the local opinion was heavily against Thornton, the prosecution was unable to build up a strong case against him, and Thornton was let free on account of insufficient evidence.

Mary’s brother William Ashford was enraged at the verdict. In fact, the entire town was outraged at Thornton’s acquittal. Newspapers across the country published letters from citizens being openly hostile towards Thornton. Soon funds were raised and William Ashford filed an appeal for retrial. Appearing at the King’s Bench, when asked to plead, Thornton threw down a leather glove before the accuser and responded, "Not guilty, and I am ready to defend the same with my body”. William refused to accept the challenge. William's council stated that Ashford was young and lacked bodily strength to wage a battle against a better-built man such as Thornton, and that the court shouldn’t entertain Thornton’s call for a trial by battle, to which the Lord Chief Justice Lord Ellenborough replied, “It is the law of England.”

At subsequent hearings the judges decided that the evidence against Thornton wasn’t strong enough to oust his right to battle. Lord Ellenborough admitted that “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.”

Lord Ellenborough concluded:

The general law of this land is in favour of the wager of battle, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices may exist therefore against this mode of trial, still as it is the law of the land, the Court must pronounce judgment for it.

Because William Ashford refused to fight, Thornton was a ruled a winner and the case was dismissed, and Thornton was freed.

The following year, Lord Eldon, the Lord Chancellor introduced a bill to abolish private appeals following acquittals and to abolish trial by battle. The bill was passed by the parliament in haste.

Abraham Thornton tried to return back to life, but found the general dislike in which he was held unbearable. He moved to the United States, got married, had children and died an obscure death sometime around 1860. William Ashford died in 1867 at the age of seventy.


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