Ashford V Thornton
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''Ashford v Thornton'' (1818) 106 ER 149 is an English
criminal case Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail ...
in the
Court of King's Bench The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the '' curia regis'', the King's Bench initi ...
which upheld the right of the defendant to
trial by battle Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the ...
on a private
appeal In law, an appeal is the process in which Legal case, cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of cla ...
from an
acquittal In common law jurisdictions, an acquittal means that the criminal prosecution has failed to prove that the accused is guilty beyond a reasonable doubt of the charge presented. It certifies that the accused is free from the charge of an of ...
for murder. In 1817, Abraham Thornton was charged with the murder of Mary Ashford. Thornton had met Ashford at a dance and had walked with her from the event. The next morning, she was found drowned in a pit with little evidence of violence. Public opinion was heavily against Thornton, but the jury quickly acquitted him of both
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...
and
rape Rape is a type of sexual assault involving sexual intercourse, or other forms of sexual penetration, carried out against a person without consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person ...
. Mary's brother William Ashford launched an
appeal In law, an appeal is the process in which Legal case, cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of cla ...
, and Thornton was rearrested. Thornton claimed the right to trial by battle, a medieval usage that had never been abolished by
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
. Ashford argued that the evidence against Thornton was overwhelming and that he was thus ineligible to wage battle. The court decided that the evidence against Thornton was not overwhelming, and that therefore trial by battle was a permissible option under law. William Ashford declined the offer of battle, however, and Thornton was freed from custody in April 1818. Appeals such as Ashford's were abolished by statute in 1819, and with them the right to trial by battle.


Background


Legal

Trial by battle Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the ...
was a procedure which had been brought to
Britain Britain most often refers to: * Great Britain, a large island comprising the countries of England, Scotland and Wales * The United Kingdom of Great Britain and Northern Ireland, a sovereign state in Europe comprising Great Britain and the north-eas ...
by the
Normans The Normans (Norman language, Norman: ''Normaunds''; ; ) were a population arising in the medieval Duchy of Normandy from the intermingling between Norsemen, Norse Viking settlers and locals of West Francia. The Norse settlements in West Franc ...
; it was not present in
Saxon The Saxons, sometimes called the Old Saxons or Continental Saxons, were a Germanic people of early medieval "Old" Saxony () which became a Carolingian " stem duchy" in 804, in what is now northern Germany. Many of their neighbours were, like th ...
law. It was authorised in "appeals of murder", retrials by
private prosecution A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation (such as a prosecution association) instead of by a public prosecutor who represents the state. Private prosecutions are allowed in ...
following an acquittal for murder. If the deceased's next of kin requested such a retrial, the defendant could respond with the "wager of battle", requiring the plaintiff to settle the matter by combat with the outcome to be ordained by God. Such an offer of battle could also take place following an acquittal for treason or another felony. Appeals of murder were uncommon, had to be brought within a year and a day of the death, and were generally tried by jury. An appeal of murder was brought in Dublin in ''O'Reilly v Clancy'' in 1815, three years before ''Ashford v Thornton'', and the defendant demanded the wager of battle. Chief Judge William Downes (later Lord Downes) asked: No combat took place in Ireland; Clancy agreed to plead guilty and was
transported for life Exile or banishment is primarily penal expulsion from one's native country, and secondarily expatriation or prolonged absence from one's homeland under either the compulsion of circumstance or the rigors of some high purpose. Usually persons ...
. It is uncertain when the last trial by battle actually took place in Britain. Some references speak of such a trial being held in 1631, but records indicate that King
Charles I Charles I may refer to: Kings and emperors * Charlemagne (742–814), numbered Charles I in the lists of Holy Roman Emperors and French kings * Charles I of Anjou (1226–1285), also king of Albania, Jerusalem, Naples and Sicily * Charles I of ...
intervened to prevent the battle. A 1638 case is less clear; while no surviving record details the outcome of the case, the King again stepped in and judges acted to delay proceedings, and no contemporaneous account says the trial by battle actually took place. The last verified judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder and then killed him in battle. The last one in England occurred in 1446 when a servant accused his master of treason. The master drank much wine before the battle and was slain by the servant. The wager of battle was not always available to the defendant in an appeal of murder. The defendant could not make the challenge if he was taken in the ''mainour'' (in the act of committing his crime), if he attempted to escape from prison, or if there was such strong evidence of guilt that there could be no effective denial. Similarly, a female plaintiff could decline the challenge, as could a plaintiff above 60 years of age, a minor plaintiff, or one who was lame or blind. Peers of the realm, priests, and citizens of the City of London could also decline the challenge to battle. In any of these cases, the trial's outcome would be determined by a jury. If the battle took place, it would occur in judicial
lists A list is a set of discrete items of information collected and set forth in some format for utility, entertainment, or other purposes. A list may be memorialized in any number of ways, including existing only in the mind of the list-maker, but ...
, square, after taking oaths against witchcraft and sorcery. If the defendant was defeated but still alive, he was to be hanged on the spot; not even the King could pardon him from the divine judgment against him. He would go free, however, if he defeated his opponent or if he fended him off from sunrise to sunset. If the plaintiff said the word ''craven'' ("I am vanquished") and gave up the fight, he was to be declared infamous, deprived of the privileges of a freeman, and held liable for damages to his opponent. Proposals were made in the 17th and 18th centuries to abolish trial by battle, but they were unsuccessful. In 1774, Parliament considered a bill which would have abolished appeals of murder and trials by battle in the American colonies as part of the legislative response to the
Boston Tea Party The Boston Tea Party was a seminal American protest, political and Mercantilism, mercantile protest on December 16, 1773, during the American Revolution. Initiated by Sons of Liberty activists in Boston in Province of Massachusetts Bay, colo ...
. It was successfully opposed by MP John Dunning, who called the appeal of murder "that great pillar of the Constitution". Writer and MP
Edmund Burke Edmund Burke (; 12 January ew Style, NS1729 – 9 July 1797) was an Anglo-Irish Politician, statesman, journalist, writer, literary critic, philosopher, and parliamentary orator who is regarded as the founder of the Social philosophy, soc ...
supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".


Death of Mary Ashford

Mary Ashford was about 20 years old, working as a general
servant A domestic worker is a person who works within a residence and performs a variety of household services for an individual, from providing cleaning and household maintenance, or cooking, laundry and ironing, or care for children and elderly ...
and housekeeper to her uncle who was a farmer at Langley Heath,
Warwickshire Warwickshire (; abbreviated Warks) is a Ceremonial counties of England, ceremonial county in the West Midlands (region), West Midlands of England. It is bordered by Staffordshire and Leicestershire to the north, Northamptonshire to the east, Ox ...
, between
Birmingham Birmingham ( ) is a City status in the United Kingdom, city and metropolitan borough in the metropolitan county of West Midlands (county), West Midlands, within the wider West Midlands (region), West Midlands region, in England. It is the Lis ...
and
Sutton Coldfield Sutton Coldfield or the Royal Town of Sutton Coldfield ( ), is a town and civil parish in the city of Birmingham, West Midlands County, West Midlands, England. The town lies around 8 miles northeast of Birmingham city centre, 9 miles south of L ...
. Her father was a gardener near
Erdington Erdington is a suburb and ward of Birmingham, in the county of the West Midlands (county), West Midlands, England. Historic counties of England, Historically part of Warwickshire, it is located northeast of central Birmingham, bordering Sutt ...
. She worked as usual on 26 May 1817 and planned to attend a party that evening at The Three Tuns, a
public house A pub (short for public house) is in several countries a drinking establishment licensed to serve alcoholic drinks for consumption Licensing laws of the United Kingdom#On-licence, on the premises. The term first appeared in England in the ...
more commonly known as the Tyburn House. The party was an "annual club-feast and dance" which attracted a large attendance. She met her friend Hannah Cox, left her work clothes at Cox's house in Erdington (after having obtained nicer clothes from her mother's house in the same village), and journeyed to the Tyburn House, arriving there at 7:30 to find the dancing already begun. Among those attending at the Tyburn House was Abraham Thornton, the son of a builder from
Castle Bromwich Castle Bromwich () is a large suburban village and civil parish in the Metropolitan Borough of Solihull in the West Midlands, England. It borders the rest of the borough to the south east, Sutton Coldfield to the east and north east, Shard E ...
. He was about 24 years old and heavyset; descriptions of him range from "well-looking young fellow" to "of repulsive appearance". When he saw Ashford, he asked someone who she was; that person later alleged that Thornton stated that he had been intimate with her sister three times, and would also be intimate with Mary Ashford or die for it. Thornton later denied this statement, which was a major source of the public animus towards him following his arrest. During the course of the evening, he was very attentive to her, and she appeared to enjoy his company. At about 11 p.m., Cox began urging Ashford to leave. When they did, it was with Thornton, who accompanied Ashford closely, while Cox walked behind them. Instead of returning to Erdington, Ashford announced that she would go to her grandfather's house, stating that it was closer to work. This was true, but it ignored the fact that she would have to return to Erdington to obtain her working clothes in the morning. Cox journeyed to Erdington, while Ashford and Thornton went off together. At about 2:45, a labourer saw Thornton leaving a friend's house with a woman; he greeted Thornton, but the woman held her head down. Just before 4 a.m., Cox was awakened by Ashford seeking her working clothes. Ashford changed and hurried off, stating that she needed to be home before her uncle left for market. A reveller returning from Tyburn House saw her walking quickly; he was the last person known to see her alive. At around 6 a.m., a passing labourer saw women's items near a water-filled pit. One of the items was a woman's shoe with blood on it. He raised the alarm, then he and others used a rake to find Mary Ashford's body in the pit. Two workers from a nearby factory found a series of footprints on the newly harrowed field near the pit, showing that a man and a woman had travelled together almost up to the pit, and that the man returned alone. The local mill owner went to Tyburn House to discover who had left the party with Ashford. Daniel Clarke, the landlord, began to ride towards Castle Bromwich to locate Thornton, and encountered him almost at once. He told Thornton of Ashford's death, and Thornton stated that he was with her until 4 a.m., and he went with Clarke to Tyburn. Assistant constable Thomas Dales from Birmingham interrogated Thornton, and soon arrested him. However, Dales did not keep any notes and later proved unable to remember much of what the prisoner told him. Thornton was then examined by magistrate William Bedford, who ordered him to be searched. The search revealed that Thornton was wearing underclothing with bloodstains, and Thornton admitted having sexual intercourse with Ashford the previous night. The prisoner's shoes were removed, and the factory workers compared them with the footprints in the field; they testified at trial that they matched. A post-mortem examination revealed that Ashford died from drowning, and that the only marks on her body were two lacerations in the genital area. The examination concluded that she had been a virgin prior to the sexual act which caused the bleeding. She was menstruating at the time of her death.


Trial

An
inquest An inquest is a judicial inquiry in common law jurisdictions, particularly one held to determine the cause of a person's death. Conducted by a judge, jury, or government official, an inquest may or may not require an autopsy carried out by a cor ...
was held on 30 May 1817, and was presided over by Francis Hacket, a Warwickshire magistrate who by virtue of his position as Warden of Sutton Coldfield was coroner ''
ex officio An ''ex officio'' member is a member of a body (notably a board, committee, or council) who is part of it by virtue of holding another office. The term '' ex officio'' is Latin, meaning literally 'from the office', and the sense intended is 'by r ...
''. Thornton attended in custody, and was permitted to cross-examine witnesses through his solicitor. At the end of the proceedings, a verdict of "Wilful Murder" was returned, and Thornton was committed for trial at the next
assize The assizes (), or courts of assize, were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes ex ...
s in Warwick on the Coroner's Warrant. Thornton was held in the county
gaol A prison, also known as a jail, gaol, penitentiary, detention center, correction center, correctional facility, or remand center, is a facility where people are imprisoned under the authority of the state, usually as punishment for various cri ...
pending the trial. Local opinion was heavily against Thornton. Pamphlets were sold purporting to show Thornton's guilt, and poems were composed with the same theme. The defendant's solicitor complained of these, alleging it made it hard to find an unbiased jury. On 8 August 1817, people filled the street in front of County Hall in Warwick, where the trial was to take place. When the judge, Sir George Sowley Holroyd (a justice of the Court of King's Bench) began proceedings at 8 a.m., people rushed to fill the available seating, and the public benches remained full throughout the one-day trial. Because of the nature of the evidence, women were not permitted to witness the trial. The prosecution's theory of the case, as told in its opening statement to the jury, was that Thornton, having failed in his attempt to seduce Ashford, lay in wait for her in the field near the pit. He knew she would have to cross the field on her return from Erdington. On perceiving him, she attempted to elude him, but he caught her and got her to accompany him into the next field. There, he threw her down and ravished her. The post-mortem showed that she had not eaten in 24 hours, and according to the prosecuting counsel, she was unable to resist and fainted. Fearing the consequences were he to be caught with an unconscious woman whom he had treated in such a manner, Thornton threw her into the pit, where she drowned. At that time, defence counsel were not permitted to address the jury, and the matter proceeded with the prosecution's case. A number of witnesses, including Hannah Cox, testified to the events of the evening of 26 May and of the following morning. The first witnesses to attract significant cross-examination by William Reader, Thornton's barrister, were the two factory workers, William Lavell and Joseph Bird, who had matched Thornton's shoes to the footprints in the harrowed field. Under cross-examination, both admitted that it had rained heavily between the time the footprints were made and the time they attempted to match the prints. Constable Dales told the jury that Thornton admitted having sex with Ashford before he was searched: that is, before his bloodstained clothing came to light. Mr Freer, a Birmingham surgeon who conducted the post-mortem, testified as to its results, and stated that except for the vaginal lacerations, there were no signs of violence on Ashford's person, and that those cuts could have been caused by consensual sexual relations. Freer's testimony concluded the prosecution's case, and as the defendant declined to exercise his right to himself make a statement to the court, the defence began calling witnesses. Through its eleven witnesses, the defence established an
alibi An alibi (, from the Latin, '' alibī'', meaning "somewhere else") is a statement by a person under suspicion in a crime that they were in a different place when the offence was committed. During a police investigation, all suspects are usually a ...
for Thornton. Milkman William Jennings (in some sources Jennans) testified that he saw Thornton at 4:30 am, walking leisurely by the farm of John Holden, where Jennings went to buy milk. The Holden farm was from the pit, depending on the path taken. At about 4:50 a.m., Thornton was seen at Castle Bromwich by a gamekeeper, John Heydon. Thornton told Heydon that he was with a woman much of the night, and after the two spent about fifteen minutes conversing, Thornton went on towards his father's house. The defence contended that for Thornton to have murdered Ashford, he would have had to chase her down, rape her, kill her, and then travel , all in at most eleven minutes. The witnesses took ten hours to testify, during which time the court sat continuously. After a short break, the judge began his summing up, taking two hours to charge the jury. The judge urged the jury to put their prejudice at hearing that Thornton had had sex with Ashford out of their heads; they were there to determine if Thornton was guilty of the offence charged. He pointed out to the jury the lack of concealment exhibited by Thornton, his admission of the sexual act and of being with Ashford until 4 a.m. The judge told them it was not possible for Thornton to have committed the acts alleged by the prosecution and still have made it to the Holden farm by the time he was seen by Heydon, and stressed that Thornton did not act like a man who ran. The judge concluded by reminding the jury that it was better a murderer go free than an innocent man be convicted. The jury never left the box, but instead conferred together and found Thornton not guilty in six minutes. They were then resworn on the rape allegation. The prosecution informed the court that it had no evidence to offer on that count, and Mr Justice Holroyd directed the jury to find the prisoner not guilty of rape, which they did. Thornton was set free.


Appeal

The acquittal of Thornton was met with outrage in Warwickshire, and indeed across the country. Newspapers published letters and comments which were extremely hostile toward Thornton. The leading papers in this campaign were the ''
Lichfield Mercury The ''Lichfield Mercury'' is a local newspaper published by Local World Ltd. It serves the Lichfield District, Staffordshire, England, United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Ki ...
'' and the ''Independent Whig'', but even ''
The Times ''The Times'' is a British Newspaper#Daily, daily Newspaper#National, national newspaper based in London. It began in 1785 under the title ''The Daily Universal Register'', adopting its modern name on 1 January 1788. ''The Times'' and its si ...
'' expressed delight when it learned that the case would be further pursued. Funds were obtained from contributors, and a local solicitor prevailed on Mary's brother, William Ashford, to bring an appeal of murder against Thornton. William Ashford was described as "a plain country young man, about twenty-two years of age, of short stature, sandy hair, and blue eyes". A writ of appeal was issued on 1 October 1817, and Thornton was arrested on a warrant issued pursuant to that writ. As the appeal was to be tried before the King's Bench in London, Thornton was taken to London on 28 October. Supporters of the Ashford family did their best to find evidence to upset his alibi. They had little success. On 6 November, the case first came before the Court, but was quickly adjourned until the 17th when Reader indicated that he had just been instructed, and needed more time to advise his client as to his plea. The initial hearing was little attended, apparently because the public did not realise the notorious Thornton would be there in person. The Warwickshire magistrate, Bedford, was now acting as solicitor for William Ashford. At first, he saw no reason for uneasiness in the appeal. However, on 11 November, he wrote to his clerk,
I am sorry to say that difficulties have been started likely to occasion much trouble and perhaps ultimate defeat. it seems the Appellee hornton/nowiki> has the option of waging Battle and of challenging the Appellor illiam Ashford/nowiki> in single combat which if not accepted by the Appellor the suit is lost and, if accepted, and the Appellee can hold out from sun rise to sun set, then he wins the contest and claims his discharge, otherwise his election subjects him not only to a good threshing but also the pain of death into the bargain. It is rumoured here that is the plea intended to be set up by the Def. and unless we can devise any means by arguement to induce the Court not to allow it, I am very apprehensive our poor little Knight will never be able to contend the Battle with his brutish opponent.
When the case came to be heard in the King's Bench on 17 November, a huge crowd packed
Westminster Hall Westminster Hall is a medieval great hall which is part of the Palace of Westminster in London, England. It was erected in 1097 for William II (William Rufus), at which point it was the largest hall in Europe. The building has had various functio ...
to such an extent that counsel had great difficulty in entering. When Thornton was called upon for his plea, he responded, "Not guilty; and I am ready to defend the same with my body." He then put on one of a pair of leather gauntlets, which Reader handed him. Thornton threw down the other for William Ashford to pick up and thus accept the challenge, which Ashford did not do. Instead, his counsel, Nathaniel Clarke, argued that Thornton should not be able to compound his murder of the sister with an attempt to murder the brother, to which the
Lord Chief Justice The Lord or Lady Chief Justice of England and Wales is the head of the judiciary of England and Wales and the president of the courts of England and Wales. Until 2005 the lord chief justice was the second-most senior judge of the English a ...
, Lord Ellenborough responded, "It is the law of England, Mr Clarke; we must not call it murder." Clarke then argued Ashford's youth and lack of bodily strength as a reason not to allow the battle. Reader, in reply, stated that Ashford's counsel should not waste the Court's time by arguing that trial by battle was unwise because of Ashford's physical condition, but should file responsive pleadings and allow the case to move forward. Reader also noted that he and his co-counsel had advised Thornton to wage battle out of concern that with the "extraordinary and unprecedented prejudice" against the defendant, a fair jury could not be obtained. The matter was adjourned to 22 November to allow Ashford's counsel to file pleadings. At subsequent hearings, each side submitted replications (
affidavit An ( ; Medieval Latin for "he has declared under oath") is a written statement voluntarily made by an ''affiant'' or ''deposition (law), deponent'' under an oath or affirmation which is administered by a person who is authorized to do so by la ...
s) with his version of the evidence. Ashford sought for the Court to rule that the evidence against Thornton was strong and that the defendant was thus ineligible to wage battle; Thornton sought the opposite. Much of the case was argued between 6 and 8 February 1818, but one of Ashford's counsel,
Joseph Chitty Joseph Chitty (12 March 1776 – 17 February 1841) was an English lawyer and legal writer, author of some of the earliest practitioners' texts and founder of an important dynasty of lawyers. Life and practice He was himself the son of a Joseph C ...
, asked for and received more time so he could reply to the other side's arguments, and the matter was adjourned until 16 April. Chitty then responded but was so often interrupted in his argument by the judges that when he sat down, according to Sir John Hall in his book on the affair, "it was clear to everyone in Court that his client had lost his case". The judges conferred for about a quarter of an hour, and then delivered judgment ''
seriatim ''Seriatim'' (Latin for "in series") in law indicates that a court is addressing multiple issues in a certain order, such as the order in which the issues were originally presented to the court. In actuarial science it refers to a model that looks ...
'' (one after the other). All four ruled for Thornton, holding that the evidence against him was not so strong as to oust his right to battle. Lord Ellenborough stated that
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.
After the other judges delivered their judgments, 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.
However, Lord Ellenborough indicated that Ashford could ask that Thornton be allowed "to go without a day", that is, be released without obligation to return to court. The matter was adjourned until 20 April for Ashford to consider his options, whether to allow Thornton's release or meet him in battle. On 20 April, Ashford's counsel indicated that he had no objection to Thornton's discharge, so long as no action would be taken against his client. With the appellant reassured on that point, the appeal was dismissed. Thornton was then given a ''
pro forma The term ''pro forma'' (Latin for "as a matter of form" or "for the sake of form") is most often used to describe a practice or document that is provided as a courtesy or satisfies minimum requirements, conforms to a norm or doctrine and tend ...
'' arraignment on the murder charge, to which he interposed a plea that he was acquitted previously. The plea being accepted, the case was ended, and Thornton was freed. With an angry mob outside, Thornton left (at Lord Ellenborough's direction) through a side door.


Aftermath

In June 1819, Lord Eldon, the
Lord Chancellor The Lord Chancellor, formally titled Lord High Chancellor of Great Britain, is a senior minister of the Crown within the Government of the United Kingdom. The lord chancellor is the minister of justice for England and Wales and the highest-ra ...
, introduced a bill to abolish private appeals following acquittals and to abolish trial by battle. The bill passed into an Act in great haste – all three required readings in the
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
passed on one night. According to Sir
Robert Megarry Sir Robert Edgar Megarry, PC, FBA (1 June 1910 – 11 October 2006) was an eminent British lawyer and judge. Originally a solicitor, he was requalified as a barrister and also pursued a parallel career as a legal academic. He later became a ...
, who wrote of the trial in 2005, the haste was due to a wager of battle being made in another case, though the names of the parties are not known. The act (the Appeal of Murder etc. Act 1819, ) recited, "whereas appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found to be oppressive; and the trial by battle in any suit, is a mode of trial unfit to be used; and it is expedient that the same should be wholly abolished". The Act abolished appeals of murder and other offences, and enacted in section 2: "that from and after the passing of this act, in any writ of right now depending, or which may hereafter be brought, instituted, or commenced, the tenant shall not be received to wage battel, nor shall issue be joined nor trial be had by battel in any writ of right; any law, custom, or usage to the contrary notwithstanding." Abraham Thornton returned to Castle Bromwich, but found the general dislike in which he was held unbearable. He booked passage to New York aboard the ''Independence'', but when his fellow passengers found out who he was, they insisted on his being put ashore. On 30 September 1818, Abraham Thornton sailed from Liverpool aboard the ''Shamrock'' to New York. In the United States, he worked as a bricklayer, married and had children. One source claims that he died around 1860 in Baltimore but there is no evidence for this. William Ashford, who for many years worked as a fish-hawker in Birmingham, was found dead in his bed there in January 1867, at the age of seventy. According to Walter Thornbury, who wrote of the case in the late 19th century, "The causes of Mary Ashford's death, only the
Last Day The Last Judgment is a concept found across the Abrahamic religions and the ''Frashokereti'' of Zoroastrianism. Christianity considers the Second Coming of Jesus, Jesus Christ to entail the final judgment by God in Abrahamic religions, God of a ...
can now reveal." Mary Ashford's grave is marked by a
murder stone Murder stones are historic markers found in the countryside of the United Kingdom. They were most popular during the 1820s, being erected at the site of infamous murders. They mostly serve to commemorate the life of the victim or to warn of the ...
which states that she "incautiously repaired to a scene of amusement, without proper protection". Academics have argued that ''Ashford v Thornton'' inspired the judicial combat which is the climax of Sir
Walter Scott Sir Walter Scott, 1st Baronet (15 August 1771 – 21 September 1832), was a Scottish novelist, poet and historian. Many of his works remain classics of European literature, European and Scottish literature, notably the novels ''Ivanhoe'' (18 ...
's ''
Ivanhoe ''Ivanhoe: A Romance'' ( ) by Walter Scott is a historical novel published in three volumes, in December 1819, as one of the Waverley novels. It marked a shift away from Scott's prior practice of setting stories in Scotland and in the more ...
''. Scott mentioned the case in his other writings, discussed it with his friends, and backdated the dedication to the book two years to the date of Thornton's wager of battle. An attempt was made in 1985 to claim trial by battle, brought by two brothers in Scotland who were accused of armed robbery, on the grounds that the abolition did not apply in Scotland. The attempt failed when the defendants could offer no evidence to oust the statutory presumption that Parliamentary acts apply to the entire United Kingdom. In 2002, a 60-year-old man, charged with failing to pay a £25 penalty for a minor motoring offence, appeared before magistrates and demanded trial by battle against a champion to be nominated by the
Driver and Vehicle Licensing Agency The Driver and Vehicle Licensing Agency (DVLA; ) is the organisation of the Government of the United Kingdom, British government responsible for maintaining a database of drivers in Great Britain and a Vehicle register, database of vehicles f ...
. He argued that trial by battle was still valid under European human rights legislation. A statement from the Lord Chancellor's office on the matter affirmed that only jury trial and trial by magistrates were legally valid options. The magistrates fined the defendant £200, with £100 costs.


Notes


References

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Further reading

*


External links

* {{Wikisource inline, Appeal of Murder, etc. Act 1819—The law abolishing trial by combat 1818 in British law 1818 in case law 1818 in England Court of King's Bench (England) cases English criminal case law History of Birmingham, West Midlands People acquitted of murder Trials by combat