Ashford v Thornton

Ashford v Thornton
Drawing of a large, crowded courtroom
The Court of King's Bench, circa 1808
CourtCourt of King's Bench
Full case nameWilliam Ashford v Abraham Thornton
Decided16 April 1818
Citation(s)(1818) 1 B. & Ald. 405, 106 ER 149 at 457
Case history
Prior action(s)Acquittal of Thornton on charges of murder and rape. (R. v Thornton, Warwick Assizes, 8 August 1817)
Subsequent action(s)On 20 April 1818, Ashford indicated that he sought no further proceedings, and Thornton went free.
Case opinions
All judges gave opinions upholding the defendant's right to wage battle.
Court membership
Judge(s) sittingLord Ellenborough (Lord Chief Justice), John Bayley, Charles Abbott, George Holroyd
Trial by battle

Ashford v Thornton (1818) 106 ER 149 is an English law case in the Court of King's Bench which upheld the right of the defendant to trial by battle on a private appeal from an acquittal 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 and found him not guilty of rape.

Mary's brother William Ashford launched an appeal, and Thornton was rearrested. Thornton claimed the right to trial by battle, a medieval usage that had never been repealed by Parliament. 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 trial by battle was a permissible option under law. Ashford declined the offer of battle, however, and Thornton was freed from custody. Appeals such as Ashford's were abolished by statute in 1819, and with them the right to trial by battle. Thornton emigrated to the United States.



Trial by battle was a procedure which had been brought to Britain by the Normans; it was not present in Saxon law.[1] It was authorized in "appeals of murder", retrials by private prosecution 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:

1544 illustration of a 1409 trial by battle in Augsburg

Can it be possible that this "wager of battle" is being seriously insisted on? Am I to understand that this monstrous proposition as being propounded by the bar—that we, the judges of the Court of King's Bench—the recognized conservators of the public peace, are to become not merely the spectators, but the abettors of a mortal combat? Is that what you require of us?[2]

No combat took place in Ireland; Clancy agreed to plead guilty and was transported for life.[2]

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 intervened to prevent the battle. A 1638 case is less clear; the King again stepped in and judges acted to delay proceedings. No record survives of the outcome of the case, but no contemporaneous account speaks of the trial by battle actually taking place.[3] The last certain judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder and then killed him in battle.[4] 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.[5]

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, and any plaintiff could decline if he was above 60 years of age or a minor,[6] or if he was lame or blind, and the case would be determined by a jury. Peers of the realm, priests, and citizens of the City of London could also decline the battle if challenged. If the battle took place, it would occur in judicial lists, 60 feet (18 m) 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.[7]

Proposals were made in the 17th and 18th centuries to abolish trial by battle, but they were unsuccessful.[8] 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. It was successfully opposed by MP John Dunning, who called the appeal of murder "that great pillar of the Constitution".[9] Writer and MP Edmund Burke supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".[10]

Death of Mary Ashford

Two hand-drawn diagrams of the scene and environs
Maps of the place where the body was found, and surrounding areas; the location of the fatal pit is now 152 Penns Lane, Sutton Coldfield

Mary Ashford was about 20 years old, working as a general servant and housekeeper to her uncle who was a farmer at Langley Heath, Warwickshire, between Birmingham and Sutton Coldfield. Her father was a gardener near Erdington. She worked as usual on 26 May 1817 and planned to attend a party that evening at The Three Tuns, a public house more commonly known as the Tyburn House.[11] The party was an "annual club-feast and dance" which attracted a large attendance.[12] 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.[11]

Among those attending at the Tyburn House was Abraham Thornton, the son of a builder from Castle Bromwich. He was about 24 years old and heavyset; descriptions of him range from "well-looking young fellow" to "of repulsive appearance".[13] 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.[14]

Sketch of a young lady in an old fashioned dress. She is pretty and has one hand on her waist.
Mary Ashford, depicted in her dancing dress

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.[15] 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.[15]

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.[16]

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.[17]

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