The case of Ashford v Thornton (1818) 1 B.& ALD 405 is one of the more remarkable cases to grace the annals of English legal history. To the public at the time it was the culmination of the investigation and prosecution of Abraham Thornton for the murder of Mary Ashford, a case so remarkable that according to contemporary reports it was talked about "not only in the cottage, but in the drawingroom, among companies consisting of both sexes." But for the legal historian, or indeed anyone interested in the archaisms that the common law system occasionally produces, the case has even greater treasures. Ashford v Thornton was not only one of the last cases in England to be brought by the ancient right of the Appeal of Murder, but it was also the last case in which the defendant claimed his right to the Wager of Battle – to be tried by combat.
The Murder of a Young Woman
In the parish of Sutton Coldfield, on May 27, 1817 at seven o'clock in the morning, the body of the twenty year old Mary Ashford was pulled from a pit of water. The local physicians soon established that she had been drowned the night before, and that there was was strong evidence that she had been raped. Further examination revealed hand-shaped bruises on her upper arms, suggesting that she had been forcibly held down. It seemed her ordeal had been a violent affair; not far from the pit where she was found were blood stained depressions in the ground where a body had recently lain. According to witnesses, she had, only the night before been present at a dance in the forebodingly named Tyburn House, and also at that dance had been a certain Abraham Thornton.
Thornton's character was not so pure as Mary's. He had been heard boasting to friends that he had slept with Mary's sister three times and would soon do the same with her. Apparently to this end convinced her to dance and at around midnight they left together. After stopping at a friend's house, footprints found in the soft ground indicated that they had walked together towards the pool where Mary's body was later found and that she had attempted to run away. At about forty yards from the pit, the ground hardened and there was no indication of what had taken place after that.
The alarm was raised and Thornton was soon caught. He protested his innocence, claiming an alibi, but when stripped of his outer shirt, his inner one appeared bloodstained, though he insisted it was not. When pressed, he admitted that he had had sexual intercourse with Miss Ashford the night before, but that it had been by her consent. He refused to admit murder.
The horrible nature of the crime, and the puritan and virginal character of Mary Ashford became the talk of the gossip columns throughout the country. According to one report at the time there was a "lively interest concerning the beautiful victim, whose bard fate even Libertinism itself must deplore, - an interest, which reached the remotest corners for the kingdom with almost electric force, and which still survives her in every humane busom." More than that, moralists came to see her untimely death as a warning for young women. One commentator went so far as to propose the following as an epitaph:
As a warning to Female Virtue,
This Monument is erected
over the Remains of Mary Ashford,
a young Woman,
chaste as she was beautiful,
who, in the 20th year of her age,
having incautiously repaired to a Scene of Amusement,
without proper Protection,
was brutally violated and murdered
on the 27th of May, 1817,
in the Parish of Aston.
The First Trial
As so often happens, even today, the public were convinced of the chief suspect's guilt. Abraham Thornton was not a sympathetic figure. The son of a bricklayer, his craft had built his already stocky frame into a muscled bulk that, when combined with his short neck, contemporary reports described as "approaching deformity." After being interviewed by the local magistrates, he charged with the murder and arraigned to the assizes at Warwick, where on August 18, 1817, he stood trial.
The trial was a popular spectacle. It was due to start at eight in the morning, but by six a crowd was already gathering outside the County Hall where it was to be held. By the time the judge arrived a few minutes after the appointed hour, the court was full to bursting. It was not unusual in the nineteenth century for notorious trials to be well attended, but it seems that due to the particularly horrid nature of the crime, this one drew an audience of unprecedented size.
The jurors were selected, and Thornton asked if he objected to any of them. He said that he did not. The charge was then read by the officer of the court.
"Abraham Thornton ... having, on the 27th of May last, in the royal town, manor, and lordship of Sutton Coldfield, in the county of Warwick, not having the fear of God before his eyes, but being moved by the instigation of the devil, wilfully murdered Mary Ashford, by throwing her into a pit of water." He then addressed Thornton directly "are you guilty of this murder, or not guilty?"
"Not guilty" replied Thornton from the dock.
He was similarly charged with Mary Ashford's rape, and to this he also replied not guilty. And with that the trial began.
The prosecution stood and delivered a lengthy and eloquent speech in which he according to his own words did not exaggerate the awful character of the crime, but nonetheless took pains to mention the poor, pure, and honest nature of Miss Ashford and her parents, and the barbarousness of what had befallen her. He listed at length the facts I have already given you above and also noted the appearance of footprints around the pit where the body was found. He drew particular attention to the fact that Thornton only admitted to his having had sexual relations with the victim when the blood on his shirt was pointed out to him.
There followed a precession of witnesses, who, over the course of eight hours, established in detail that Thornton had been seen dancing with the deceased, that he had been seen leaving the pub with Mary Ashford, that she had gone to her friend's house at about five in the morning to change her dress, and had subsequently left, and that Thornton had been seen with her in the area where the body was found. However, no witnesses saw him commit the act of which he was accused, and furthermore, in his defence, Thornton brought a number of witnesses who swore they had seen him some three miles from the site a very short space of time later.
The judge summed up the facts of the case, dwelling both on the evidence against Thornton and on the viability of his alibi. The jury then retired for deliberation, returning only a few minutes later, and as the Newgate Calendar put it: "to the utter astonishment of all who had taken an interest in this awful case, pronounced a verdict of NOT GUILTY". Thornton, it seemed, had escaped the hangman's noose and, after the rape charges were also dropped, was free to go.
The Second Trial
Those familiar with the Common Law will be aware of the principle of Double Jeopardy, which states that once a person is acquitted of a crime they may not be tried for it again. This is a very ancient principle, built on the trust that the judgement of a jury is made in good faith and against the chance that a malicious prosecutor might bring the case repeatedly until a verdict of guilty is achieved. However established this principle may be, in 1817 there was one older, known as the Appeal of Murder. Dating back to the time of the Norman Conquest, the Appeal of Murder enabled a victim's kinsman to demand justice, even if a judgement of not guilty had already been delivered. The murdered girl's brother, William Ashford, no doubt distressed that the man he saw as her killer had been allowed to go free, sought to avail himself of this ancient writ.
On 17 November, 1817, the trial began. Not in some provincial guild hall, but at the Court of the King's Bench in London. Again the charges were read to Abraham Thornton, and again, he plead not guilty, but then, on being handed a piece of paper by his counsel, continued:
"and I am ready to defend the same by my body."
He had issued a Wager of Battle. A hush fell upon the court. Thornton was handed two gloves, one of which he put on himself, the other he threw to the courtroom floor, challenging his adversary, the appellant Ashford. It is worth noting perhaps that Thornton was a bulky labourer, whereas Ashford was small and delicate. It is therefore somewhat understandable that he did not pick up the gauntlet.
Equally as understandable as Ashford's reticence was the flustered reaction of his counsel, Mr Clarke. He argued that the Wager of Battle was an obsolete legal procedure that was no-longer a part of the law. He noted that it would be extremely surprising if the court would allow Thornton to acquit himself of Miss Ashford's murder by the murder of her brother. He was rebuked for using such strong tones to describe the law of the land, but nonetheless succeeded in his request for the court to adjourn and consider the plea in more detail once it had had time to research and prepare.
The court reconvened three times in all, each time hearing the eloquent arguments of counsel from both sides. Having consulted the ancient legal text of Bracton, the court decided that the law was as follows: in an Appeal of Murder, the defendant was indeed entitled to prove his case by his body. As abhorrent as the idea of single-combat might be to a modern enlightened society, the procedure had never been abolished by parliament. England is not a Kritocracy; its judges may only interpret the law, not make or abolish it. They did however throw Ashford one lifeline. According to the old authorities however, Thornton would be deprived of this right if it was sufficiently obvious that he was the guilty man. The evidence would however have to be quite extreme; the example given was of the defendant being found standing over the dead man's body holding a bloody knife.
Ashford's legal team seized upon this potential loophole. They re-visited the bloodstains on Thornton's shirt, drawing an analogy with the bloody knife, the witness statements that Thornton had been seen in the area. Thornton's general character was assessed. All the proceedings of the previous trial were revisited. However, Thornton was still able to argue his case on one crucial point, despite all the circumstantial evidence that was lain against him, a jury had still found fit to find him not guilty. The court ultimately accepted Thornton's argument and ruled that the burly, muscular bricklayer might prove his case by attempting best the "frail and dwarflike" William Ashford in a fight to the death.
Realising that his case was now futile, Ashford withdrew his appeal. The court very briefly considered whether proceedings could continue in any form, but decided against it. Following some short formalities, Thornton was for the second time Acquitted of Mary Ashford's murder.
As has been said, this case drew considerable attention. In the mind of much of the public Thornton was guilty as charged and had escaped a just execution twice, once by luck, and once through the devious use of legal trickery. Indeed, when he attempted to leave the country for a new life in America, Thornton reportedly discovered that no ship would take him on board. Eventually he was forced to make his escape in disguise. Reacting to the palpable public outcry, parliament rushed to pass a bill that would ensure that such an outrage would never occur again.
Interestingly there was some small opposition to abolishing the Appeal of Murder, and it had indeed been discussed by parliament some forty years previously during a debate over the rebellious American Colonies. In order to quell the uprising, stern measures were debated by parliament, Lord North in particular being unwilling to give any credence to the arguments of the colonials. One suggestion was that the right of Appeal of Murder be withdrawn, but it was sternly defended by Lord Ashburton as "a pillar of the constitution". In particular he noted that it was the only occasion when a peer, deprived the right of Battle for sake of his dignity, might face a jury of common people, rather than be tried by the House of Lords as was his usual privilege.
Ultimately, however, it was agreed that the principle established in Ashford v Thornton should prevail. To retry a man once acquitted was an affront to justice, and it was considered to be right that the appellant only be allowed to do so if he were willing to stake his life on the matter. Subsequently both the Wager of Battle, and the Appeal of Murder were struck from English law.
Ashford v Thornton had one other lasting effect; it confirmed that no matter how trivial, old-fashioned or absurd, the laws of England were to be made and abolished by parliament alone.
Ashford v Thornton (1818) 1 B.& ALD 405
Various contemporary quotations from: The Gentleman's Magazine 1817 and 1818 issues.
The Newgate Calendar provides excellent if sensational detail of the trial, see http://www.exclassics.com/newgate/ng574.htm
Parliamentary debates sourced from Cobbett’s Parliamentary History Vol XVII
The Wager of Battle and the Appeal of Murder were both abolished by the Statute 59 Geo. 3, c. 46
Various other sources I used for my dissertation detail the case - if you are desperate to know, ask me, or alternatively, badger me into noding it.