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This Day in Legal History -- Ashford v. Thornton

This day in legal history marked the beginning of the end of a valuable right in England; the right to trial by battle (or more correctly, battel). The famous English case of Ashford v. Thornton (106 E.R. 149) was the death knell for this right of all Englishmen.

In 1817 the body of Mary Ashford was found dead in a water filled pit. The last person to see her was Abraham Thornton who had walked home with her after a dance. Some physical evidence pointed to Thornton as the murderer, but several witnesses who testified at the murder trial provided Thornton with an alibi. After a one day trial, and a six minute jury deliberation, Thornton was found not guilty. William Ashford, the deceased's brother, brought a private appeal against Thornton. Thornton was arrested and when the appeal was brought he stated that his plea was “Not guilty; and I am ready to defend the same with my life,” and he literally through down a gauntlet. Ashford did not pick it up, but his lawyers argued that Thornton shouldn’t be allowed to compound the murder of the sister with the murder of the brother. The judge cautioned Ashford’s attorneys not to call it “murder” since trial by battle was a legal right.

The trial by battle was available in murder trials when the next-of-kin of the deceased brought a private prosecution. The defendant was allowed to request a trial by battle with the two parties to meet and let the outcome “be ordained by God.” Elaborate rules governed how the battle was to be fought, but understandably as England became more civilized the practice became disfavored. The last known trial by battle in England occurred in 1446 when a servant accused his master of treason. The servant won.

Rather than duke it out in the courtroom, the parties filed affidavits to the court; Ashford pleading that the evidence against Thornton was overwhelming thus negating his right to battle and Thornton pleading the opposite. The justices ruled that Thornton did have a right to battle and that “We are delivering the law as it is, and not as we wish it to be.” Their disgust in the ruling is evident.

The court went on to offer Ashford an escape from potential injury or death; he could ask the court to allow Thornton to be released. On April 20, 1818 Ashford agreed to Thornton’s discharge.

In June of 1819 a bill was introduced in Parliament to abolish private appeals and trial by battle. The act passed the House of Lords in one night. Abraham Thornton soon after immigrated to the United States and died in Baltimore in 1860.

Trial by Battle was tried by in the 1980’s by a couple of armed robbers who believed the law did not apply to Scotland. In 2002 a man challenged the Driver and Vehicle Licensing Agency to Trial by Battle over a traffic violation. The magistrates were not happy and he was slapped with a heavy fine and court costs.

Ashford v. Thornton was in a small way a landmark case. It provided the impetus to do away with a legal procedure that came over with the Norman conquerors. The case also cemented the power of the bar because, after all, if Trial by Battle were allowed, what would the lawyers do?


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